gst 1 wp9800.10.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. WRIT PETITION NO. 9800 OF 2010. Manojkumar Vilasbhai Shah & Anr. ... .... ..Petitioners. V/s The Merchant Association & Ors. .. ... ..Respondents. Mr.S.S.Kulkarni, Adv. For the petitioners. Mr.A.P.Kulkarni, Adv. For the respondents. CORAM: B.R. GAVAI, J. 7th April, 2011 PC: By way of present petition the petitioner challenges the order dated 22.11.2010 thereby rejecting the applications below Exs.20, 21, 65 and 66 in Spl. Darkhast No.26/09. 2. The respondent No.3 herein had filed a suit for mandatory injunction against respondent Nos. 1 and 2. The plaintiff-respondent No.3 who is mother of present applicants had sought declaration that she was the owner and was in possession of the suit property as described in Schedule 1A along with plaint. She had also sought mandatory injunction directing the defendants to execute sale deed in favour of plaintiff in respect of suit property. The respondent resisted the suit by filing written statement and filed a also counter claim. It was the claim of defendant No.2 that it had purchased the suit property for consideration of Rs.13,05,000/- on 26.6.2001 and had become owner of the suit property. The suit of the plaintiff was dismissed. Learned trial Court came to a finding that defendant No.1 was in illegal possession of the suit property. The counter claim of defendant No.2 was allowed. It was found that defendant No. 2 was having title over the suit property and further that defendant No.2 was entitled to recover possession of the suit property from the plaintiff. The said decree passed by the learned trial Court has been confirmed upto Apex Court. gst 2 wp9800.10.sxw Since respondent No.3 did not hand over possession execution proceedings came to be filed vide Special Darkhast No.26/09. In the said proceedings an application below Ex.20 was filed by petitioner No.1 herein to make him a party as intervenor. In another application below Ex.21 the petitioner No.1 had stated that the property for which the execution proceedings were initiated was ancestral property which had initially came to the share of his father and subsequently in view of oral partition had come to his share. Another application came to be filed by petitioner No.2 contending therein that she was in possession of the suit premises and that she had put a lock to the said premises and therefore she had also submitted that the execution proceedings be stayed until she is heard. All these applications are rejected. Being aggrieved thereby present petition is filed. 3. Mr.S.S.Kulkarni, learned counsel appearing on behalf of the petitioner submits that the executing court has grossly erred in dismissing all the applications. He submits that since petitioner No.1 had made out a specific case that he was residing in the suit premises for the last 15 years along with his family members he was entitled to be impleaded as intervenor in the execution proceedings. Mr.S.S.Kulkarni, learned counsel therefore submits that the executing court ought to have permitted the petitioner to lead the evidence since the petitioner had made out a case that a question had legally arisen between the parties and that the said question is relevant for consideration and determination between the parties. Learned counsel relied upon a judgment of the Apex Court in the case of Silverline Forum Pvt. Ltd. Vs. Rajiv Trust & Anr., AIR 1998 SC 1754. Learned counsel also relies upon a judgment of the Apex Court in the case of Brahmdeo Chaudhary Vs. Rishikesh Prasad Jaiswal & Anr., (1997) 3 SCC 694. 4. As against this Mr.A.P.Kulkarni, learned counsel appearing on behalf of respondent No.1 submits that the present proceedings are nothing but an attempt on behalf of the petitioners in collusion with respondents 2 and 3 to gst 3 wp9800.10.sxw frustrate execution of decree which has achieved finality upto the Apex Court. He submits that while rejecting the applications learned trial Court has also taken into consideration the conduct of the parties in as much as the same lawyer who had been appearing for the plaintiffs was also appearing for the present petitioners and subsequently has withdrawn his appearance for one of the parties. He submits that this is sufficient enough to establish that the parties were acting in collusion with each other. Learned counsel relies upon judgment of the division bench of this Court in the case of West Coast Paper Mills Ltd. Vs. Trustees of The Port of Bombay & Ors., (Appeal No.20 of 1999). 5. It can thus be seen that the stand taken by both the petitioners who have filed present petition itself is not only contradictory but unbelievable even to a layman. The petitioner No.1 says that the suit property had initially fallen to the share of his father in partition and subsequently by oral partition it had fallen to his share and he is residing there for last 15 years along with members of his family. Not only this but he says that due to shock of being ousted from the suit premises his wife has fallen sick and is bed ridden in the house. As against this his real sister the petitioner No.2 says that she is in possession of the property and has put on lock on the suit premises and as such the decree should not be executed without hearing her. It is difficult to understand as to how petitioner No.1 and his family with a bed ridden wife are residing in the premises which is under lock and key of the petitioner No.2. It is thus apparently clear that the petitioners are in utter collusion with respondent Nos. 2 and 3. It is pertinent to note that even while decreeing counter claim of respondent No.1 and dismissing the suit of the respondent No.3 the Courts have come to the conclusion that suit was collusive suit between the plaintiff and defendant No.1 (respondent No.2) who are closely related to each other. By way of present application the petitioners herein have attempted to perpetuate the said collusion to frustrate the execution of decree which has achieved finality before the Apex Court. In so far as the judgment of the Apex gst 4 wp9800.10.sxw Court in the case of Silverline Forum Pvt. Ltd. (supra) is concerned, the Apex Court itself has observed thus: “The questions which executing Court is obliged to determine under Rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is such questions must be relevant for consideration and determination between the parties,” The Apex Court in the said has further observed thus: “12-13. It is clear that executing Court can decide whether the resistor or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21, Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary.” 6. Perusal of application filed by the present petitioner i.e. petitioner No.1 does not reveal as to what independent right he has got. No details, leave apart any substantial material to support the plea of partition has been placed on record. In view of the aforesaid observations of the Apex Court in the case of Silverline Forum Pvt. Ltd. (supra) it can thus be seen that for dispute like the present one it was not necessary to have detailed inquiry or to collect the evidence. On the basis of admitted fact or on the basis of averments made by the present petitioners learned executing court could have decided objection of the present petitioner which it has decided. In so far as reliance placed on the case of Brahmadev Choudhary (supra) is concerned the said case pertains to obstruction by a stranger. In the present case the obstructionists are the son and daughter of the judgment-debtor and that too taking totally contradictory gst 5 wp9800.10.sxw stands. In so far as the observations of the learned trial Court regarding conduct of the petitioners and their mother engaging the same counsel and later withdrawing the same are concerned, I do not find it necessary to go into that aspect of the mater. The conduct of the present petitioners who have filed joint petition itself depicts that every attempt is being sought to be made to frustrate the execution of decree even by taking contradictory and unbelievable stands. 7. In that view of the matter, it cannot be said that the learned trial Court has committed any perversity so as to warrant interference in the extra ordinary jurisdiction under Article 227 of the Constitution of India. Hence writ petition stands dismissed. 8. At this stage Mr.S.S.Kulkarni, learned counsel appearing on behalf of the petitioners prays for continuation of interim protection granted by this Court for further period of six weeks from today. Mr.A.P.Kulkarni, learned counsel for respondents vehemently opposes the said prayer. 9. The proceedings arise out of execution of decree which has been confirmed upto the Apex Court. I have already discussed conduct of the present petitioners in the foregoing paragraphs and I do not find that conduct of such litigants deserves any further indulgence by this Court. Hence prayer is rejected.