1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1342 OF 2010 Sewantabai w/o Sada Vanjari, age: 72 years, Occ: Household, R/o Vairlyacha Pada (Songir), Tal. Songir, District Nandurbar. Petitioner Versus 1 Smt.Hirkibai @ Hira w/o Lakha Vanjari, age: 53 years, Occ: Agriculture, R/o Vairlyacha Pada (Songir), Tal. Songir, District Nandurbar. 2 Sardar Lakha Vanjari, age: 28 years, Occ: Agriculture, R/o Vairlyacha Pada (Songir), Tal. Songir, Dist. Nandurbar. 3 Shivdas Lakha Vanjari, age: 25 years, Occ: Agriculture, R/o Vairlyacha Pada (Songir), Tal. Songir, Dist. Nandurbar. 4 Malsingh Lakha Vanjari, age: 26 years, Occ: Agricuture, R/o Vairlyacha Pada (Songir), Tal.Songir, District Nandurbar. 5 Smt.Navsu Halchand Vanjari, age: 36 years, Occ: Agriculture, R/o Vairlyacha Pada (Songir), Tal. Songir, District Nandurbar. 6 Smt.Lata w/o Shohan Vanjari, 2 age: 25 years, Occ: Agriculture, R/o Chaupale, Distrit Nandurbar. 7 Smt. Tara w/o Popat, age: 24 years, Occ: Household, R/o Pimpalkotha, Tal. Parola, District Jalgaon. 8 Kum.Pramila d/o Lakha Vanjari (since died through her heirs): 8A Jagram Kesu Vanjari, age: major, Occ: Agril., R/o Umarde, Tal.Nandurbar, District Nandurbar. 8B Ravindra Jagram Vanjari, age: 8 years, Occ: Nil, minor, under guardianship of real father Jagram Kesu Vanjari, age: major, Occ: Agril., R/o Umarde, Tal. Nandurbar, District Nandurbar. 8C Arvind Jagram Vanjari, age: 6 years, Occ: Nil, minor, under guardianship of real father Jagram Kesu Vanjari, age: major, Occ: Agri., R/o Umarde, Tal. Nandurbar, District Nandurbar. 8D Aruna Jagram Vanjari, age: 4 years, Occ: Nil, minor, under guardianship of real father Jagram Kesu Vanjari, age: major, Occ: Agril., R/o Umarde, Tal. Nandurbar, District Nandurbar. Respondents 3 Mr.R.R.Mantri, advocate for the petitioner. Mr.A.G.Magare, advocate for Respondents. CORAM: R.M.BORDE, J. Reserved on: 16 th September, 2010. Pronounced on:12 th October, 2010. ORDER: 1 Instant writ petition is presented by original judgment debtor objecting to the order of rejection of her application by the executing court, which order has been confirmed by the District Court while dealing with Misc. Civil Appeal No.7/2009, decided on 22.09.2009. 2 Respondents are the decree holders who have obtained decree for possession of part of agricultural land from Block No.38 situate in village Nagzari, Taluka and District Nandurbar. The judgment and decree was passed in favour of plaintiffs – respondents herein on 27.09.1984 in Regular Civil Suit No.238/81. An application seeking execution of the decree was presented in the month of August 1996 by the plaintiffs – decree holders. It is contended that although plaintiff no.8 Pramila died on or about 11.01.1995, her name was included in the Darkhast, which, according to the judgment debtor, is a fraud played by the decree holders. Petitioner – judgment debtor raised an objection to the execution contending that the decree under execution is without jurisdiction. The boundaries of the land admeasuring 8 4 acres 27 gunthas have not been fixed. The pot-hissa is not allotted to the suit land G.No.38 and same cannot be divided without prior permission of the Collector. The Civil Court has no powers to divide G.No.38 and hand over possession of southern 8 acres 27 gunthas to the decree holders. It is, therefore, contended that execution application be dismissed. 3 The objection tendered by judgment debtor was overruled by the executing court in view of the order passed on 19.06.1997. The judgment debtor presented writ petition No. 4491/97 challenging the order passed by the executing court. Writ Petition, however, came to be dismissed by this Court on 23.06.2008. 4 Petitioner – original judgment debtor raised objection by presenting applications at Exhibit-46 & 48 contending that suit land is a new tenure land and, therefore, as per the provisions of Section 36 of Maharashtra Land Revenue Code, the jurisdiction to resolve the dispute in respect of suit land lies with the Collector. Hence, decree passed in R.C.S. No.238/81 is without jurisdiction and cannot be executed. It is also contended that a Civil Revision Application is presented to the High Court and until decision of the Civil Revision Application, the Darkhast proceedings be stayed. Both the applications were taken up for consideration by the executing court and after hearing the arguments, the executing court was pleased to reject the application by order dated 5 08.08.2007. At the same time, decree holders no.1 to 7 were permitted to take steps for bringing on record legal representatives of deceased decree holder Pramila w/o Lakha Vanjari. It appears that no steps were taken by the decree holders for recording names of legal representatives of plaintiff no.8 / decree holder no.8. An application objecting the execution was again presented at Exhibit-74 by the petitioner – judgment debtor contending that although name of plaintiff no.8 is mentioned in the Darkhast, Darkhast does not bear her signature or thumb impression. In the absence of one of the plaintiffs, the proceedings of execution cannot be proceeded with and the Darkhast deserves to be dismissed. It is also contended that names of legal representatives of deceased plaintiff / decree holder no.8 cannot be permitted to be included in the darkhast as their inclusion would be in violation of the provisions of Limitation Act. 5 The objection presented by petitioner – judgment debtor purportedly under Section 47 read with Section 151 as well as under Order XXI Rule 101 of the Code of Civil Procedure was taken up for consideration by the executing court and after hearing both the sides, the objection application came to be rejected. Decree holders were, however, permitted to bring on record names of proposed legal representatives of deceased plaintiff / decree holder no.8. 6 The order passed by the executing court was subjected 6 to challenge in Misc. Civil Appeal No.7/2009 by petitioner – judgment debtor. The Misc. Civil Appeal was heard and disposed of by District Judge-1, Nandurbar, who was pleased to dismiss same by judgment and order dated 22.09.2009. The appellate court held that the appeal tendered by the judgment debtor is not maintainable. However, the appellate Court has simultaneously considered merits of the contentions and has observed that those do not bear any substance and as such proceeded to dismiss the appeal on its merits also. 7 I have perused the orders passed by both the Courts below and heard arguments advanced by learned Counsel for respective parties. 8 It is vehemently contended by learned Counsel for the petitioner – judgment debtor that once the appellate Court comes to the conclusion that the appeal was not maintainable, it was not open for the appellate Court to consider merits of the controversy and proceed to deal with the issues. It is contended that observation by the appellate Court that the appeal is not maintainable is devoid of substance. It is contended that the objection raised is very much under Rule 101 Order XXI of the Code of Civil Procedure as well as under Section 47 of the Code and as such, the appeal was maintainable. Merely because Misc. Civil Appeal was preferred, the Court cannot proceed to hold that same was not maintainable. The Court could have treated the 7 appeal as Regular Civil Appeal. It is also contended that the appellate Court ought not to have considered merits of the controversy once the Court comes to the conclusion that the appeal is not maintainable. It is also contended that the decree passed by trial Court in respect of handing over of possession is joint and is not severable and as such, in the absence of one of the plaintiffs, same cannot be put to execution. Another contention raised is that the Court below has committed an error in permitting the decree holders to implead legal representatives of deceased plaintiff / decree holder no.8 on record much after lapse of period of limitation. It is contended that the decree of 1984 is put to execution in the year 1996, whereas, legal representatives of deceased plaintiff/decree holder no.8 are being brought on record in the year 2010, which is not permissible. Decree holder no.8 was not party to the execution proceedings and as such, after lapse of limitation, her heirs cannot be permitted to be impleaded in the Darkhast. Reliance is placed on the judgment in the matter of Smt.Jiwani Vs. Basantika Devi & others, reported in AIR 1994 SC 1286 9 Learned Counsel appearing for Respondents – decree holders contends that it is an attempt by the judgment debtor to stall the execution proceedings. Earlier objections raised by the judgment debtor were turned down by the executing court. At every stage, new grounds are being raised merely to stall progress of execution of the decree. It is contended that in view of 8 provisions of Rule 15 of Order XXI of the Code of Civil Procedure, execution application is maintainable by one of the decree holders in case of a joint decree and as such, the objection is not sustainable. It is contended that the executing court has already permitted decree holders to bring on record legal representatives of deceased plaintiff / decree holder no.8 Pramila in the year 2007 and said order was not challenged by the judgment debtor. Merely because legal representatives of deceased decree holder no.8, who is one of the joint decree holders, are impleaded late, it does not mean that execution itself is presented beyond limitation or that the execution application itself is not maintainable. It is contended that the objection raised in the instant application ought to have been raised when the earlier objection applications were tendered. Having considered earlier objections and also having confirmed the orders passed by executing court dealing with the earlier objections, by the High Court, it is not open for the judgment debtor to raise a different ground for objecting the execution of the decree. The application itself is hit by principles of constructive res judicata. 10 Rule 15 of Order XXI of the Code of Civil Procedure reads thus: 15 Application for execution by joint decree- holder – (1) Where a decree has been passed jointly in favour of more persons than one, any one or more of such persons may, unless the decree imposes any condition to the contrary, apply for the execution of the whole decree for 9 the benefit of them all, or, where any of them has died, for the benefit of the survivors and the legal representatives of the deceased. (2) Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interests of the persons who have not joined in the application. 11 In the instant matter, decree is passed by the trial Court in respect of possession of part of Block No.38 in favour of plaintiffs – decree holders. The decree is joint so far as it relates to the plaintiffs. In view of the provisions of Rule 15 of Order XXI, any one of the joint decree holders may present execution application for and on behalf of joint decree holders. In the instant matter, although application for execution has been presented in the name of all eight plaintiffs – decree holders, signature of plaintiff no. 8 / decree holder no.8 Pramila does not find place on the execution application, obviously, for the reason that she was dead at the relevant time. The application for execution on behalf of other seven decree holders is perfectly maintainable. Merely because names of legal representatives of deceased Pramila are being included in the execution application at later stage, it does not give rise to the conclusion that the proceedings for execution itself are tendered beyond prescribed period of limitation. The impleadment of legal representatives of plaintiff / decree holder no. 8, after lapse of more than twelve years, does not render the decree 10 unexecutable as the decree is a joint one and is executable at the instance of one of the joint decree holders and in the instant matter, all the decree holders are party to the execution proceedings. Even otherwise, there was an order passed by the executing court permitting impleadment of legal representatives of deceased Pramila, in the year 2007 itself, which order has not been challenged by the judgment debtor and has attained finality. 12 In these circumstances, it is not open for the judgment debtor to contend that the application for execution itself is barred by limitation or that the same is required to be dismissed being not maintainable. The objection raised by judgment debtor is devoid of substance and has been rightly turned down by the executing court and the appellate Court was also justified in turning down the appeal. There is no substance in the objection raised by the judgment debtor. It is merely an attempt to stall the proceedings of execution, which are being dragged for more than two decades. In exercise of powers conferred under Article 227 of the Constitution, no interference is called for. Petition is devoid of substance. 13 Writ Petition, therefore, stands rejected. (R.M.BORDE) JUDGE ******* adb/wp134210