1 wp 5138.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5138 OF 2011 Devidas Eknathrao Revkikar Died through L.Rs. Chandrakant Devidasrao Revikar and another .. Petitioners Versus Sitaram Yeshwant Kulkarni Died through L.Rs. Ashabai Sitaram Kulkarni and anr. .. Respondents Smt. M. A. Kulkarni, Advocate for Petitioners. Shri M. D. Shinde, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE ON WHICH RESERVED FOR ORDER : 10.10.2011 DATE ON WHICH THE ORDER PRONOUNCED: 23/12/2011 PER COURT : . The petitioners are the judgment debtors. Deceased Sitaram Yashwant Kulkarni filed Spl. C. S. No. 4/1980 for possession of suit house. The same was decreed. The petitioners preferred First Appeal No. 01/1983. The said appeal came to be 2 wp 5138.11 abated on 28.10.1999. The respondent filed execution petition bearing R. D. No. 96/2000 for execution of the decree. The respondent Ashabai filed the darkhast on the ground that she is the legal heir of Sitaram. The present petitioners in First Appeal No. 01/1983 thereafter brought Ashabai on record as heir of deceased Sitaram for prosecuting the appeal. According to the petitioners, they disputed her status. The first appeal was dismissed. Thereafter, the petitioners filed second appeal which also came to be dismissed. In R. D. No. 96/2000, the petitioners raised objection U/Sec. 47 of the Code of Civil Procedure. The said objection is rejected. The petitioners filed an appeal before the District Court, Beed bearing M. C. A. No. 01/2010. The same was also dismissed. Aggrieved thereby the present petition is filed. 2. Mrs. M. A. Kulkarni, the learned counsel for petitioners strenuously advanced her arguments and also filed written notes of arguments. The learned counsel contends that when an objection U/Sec. 47 of the Code of Civil Procedure is taken, it is mandatory on the part of the executing Court to decide the question in respect of the status of the parties. But the Courts below erred in deciding that Ashabai is the legal heir of deceased 3 wp 5138.11 Sitaram, only on the basis of succession certificate in respect of movable property and heirship certificate for pensionary benefits which are not concerned with immovable property. The said certificates cannot be the basis for deciding the issue of heirship and status of Ashabai. 3. It was further contended by the learned counsel that the Courts below failed to consider the observations of the High Court in respect of the heirship certificate in Writ Petition No. 4293/2008. 4. The learned counsel further contended that earlier Special Darkhast No. 01/1983 was filed by Sitaram. The special darkhast stood abated and subsequent darkhast filed by Ashabai was not maintainable. The subsequent darkhast is not maintainable. The second execution application after dismissal of first one is not maintainable. For the said purpose the learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Om Prakash Navani Vs. Herebert Joseph Pereira reported in 2003(6) Bom. C. R. 170 and the judgment of the learned Single Judge of Allahabad High Court in a case of Makkhan Lal Jaiswal Vs. Executive Engineer reported in 4 wp 5138.11 AIR 2002 Allahabad 75. 5. The darkhast filed by Ashabai is time barred, as it is filed after 12 years of the decree passed by the Trial Court and earlier darkhast is not pressed. The learned counsel relies on the judgment of the Apex Court in a case of Hameed Joharan Vs. Abdul Salam reported in (2001) 7 S.C.C. 573 and the judgment of the learned Single Judge of this Court in a case of Om Prakash Navani Vs. Juno Changas Pereira reported in 2003(5) Bom. C. R. 565. The learned counsel further contends that all these aspects have not been considered by the executing Court. As such, the impugned order deserves to be quashed and set aside and the darkhast dismissed. The learned counsel alternatively submits that this Court may remand the matter for deciding the status of Ashabai as heir of deceased and to consider all the other aspects raised by the petitioners. 6. Shri M. D. Shinde, the learned counsel for the respondent No. 1 supports the order and submits that, both the Courts have taken into consideration relevant evidence on record and have come to the conclusion that Ashabai has proved that she is legal heir of deceased Sitaram. There is no necessity to remand the 5 wp 5138.11 matter. Even the petitioners had brought the present respondent No. 1 on record as legal heir of deceased Sitaram in appeal and second appeal. The evidence is also discussed by the Courts and have arrived at right conclusion. The darkhast proceedings are filed in limitation and the question of non maintainability of execution petition does not arise as the same is filed by the legal heir of deceased after the first appeal came to be abated. 7. With the assistance of learned counsel I have gone through the judgments of both the Courts and documents filed on record. The fact that the present petitioners have suffered decree against them and are directed to deliver the possession of the suit house is well established. The moot contention of the petitioners is that Ashabai is not legally married wife of Sitaram and as such cannot be his legal heir or legal representative. 8. The contention of petitioners is that Ashabai is not the legally wedded wife of Sitaram. They were residing together as husband and wife without marriage. The appeal was filed by the petitioners against the judgment and decree passed in Spl. C. S. No. 04/1980. The said appeal stood abated on 28.10.1999. The petitioners themselves have brought Ashabai on record as legal 6 wp 5138.11 heir of Sitaram and the said appeal was contested by Ashabai. Even if it is assumed she was brought on record merely for prosecuting the appeal, still that is a circumstance which is to be taken into consideration. Further said Ashabai had filed proceedings for heirship certificate and succession certificate. Said proceedings were allowed on the ground that she is the wife of Sitaram. The findings in the said proceedings may not operate as res-judicata. But none the less the same can also be considered as a corroborative piece of evidence. When it is stated by the petitioners themselves that Ashabai and Sitaram were residing together as husband and wife without marriage as is observed by the lower Appellate Court in para 10 of its judgment, then Section 50 of the Indian Evidence Act would be relevant. The conduct between the parties would be relevant to form an opinion about existence of such relationship. Moreover, it has also come on record that one suit was filed bearing R.C.S. No. 102/2002, wherein the respondent No. 2 Jayant's status as a adopted son of Sitaram was disputed. The registered adoption deed dated 16/02/1991 is on record. The petitioners have not disputed the execution of the said adoption deed. They have only stated that the said adoption deed is illegal. In the said suit which was between the present respondents interse, it has been 7 wp 5138.11 held that Jayant is the adopted son of Sitaram and the consent of the wife of Sitaram was obtained and the same is signed by the respondent No. 1 Ashabai as the wife of Sitaram. The petitioners have not brought on record the fact that at the relevant time the first wife of Sitaram i. e. Maltibai was alive. In the judgment and decree passed by the competent Civil Court in R.C.S. No. 102/2002 it is held that Jayant is the adoptive son of deceased Sitaram. In that case adoption deed was proved by examining witnesses and in the said adoption deed Ashabai has signed as having given consent being wife of Sitaram. All the aforesaid facts would unequivocally go to show that Ashabai is the wife of Sitaram and Jayant is the adoptive son of Sitaram and they are legal heirs of deceased Sitaram and the petitioners themselves have brought the present respondents on record in an appeal against the judgment and decree in the suit as legal heirs of Sitaram. 9. The jurisdiction of this Court under Article 227 of the Constitution of India in appreciating the evidence is in narrow campas. Both the Courts have concurrently held the present respondents to be the legal heirs of deceased Sitaram. 8 wp 5138.11 10. The point of limitation as is raised by the learned counsel for petitioners is not countenanced by law. The appeal stood abated on 28.10.1999, the limitation would be counted from the date when the appeal stood disposed of. The said proposition is no longer res-integra in view of the judgment of the Apex Court in a case of Chandi Prasad and others Vs. Jagdish Prasad and others reported in 2004(8) SCC 724. 11. Regarding the third objection that successive execution petitions are not maintainable also cannot be considered. The judgment in a case of Om Prakash Navani referred supra relied by the learned counsel for petitioners would not be applicable to the present case. The earlier execution petition was not dismissed on merits. But it stood abated as Sitaram had filed execution and died. There is no bar for filing successive execution petitions. The learned Single Judge of this Court in a case of Meenabai Vs. Sudhakar reported in 2008 (5) Bom. C. R. 233 has laid down that successive execution petition is maintainable, if the same is not decided on merits provided it is within limitation. In the present case as it is observed, the appeal was disposed of on 28.10.1999 and the execution petition was filed in the year 2000. 9 wp 5138.11 12. In the light of the above, the writ petition is sans merit, as such dismissed, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] 13. The learned counsel for petitioners states that the interim relief granted earlier be continued for further period of four (4) weeks. Taking into account the fact that the interim relief was earlier granted, the interim relief granted earlier to continue for a period of three (3) weeks. 14. Needless to state that on lapse of three (3) weeks, the interim relief would stand vacated. [ S. V. GANGAPURWALA, J. ] bsb/Oct. 11