1 Civil Revision Application No.118/2005 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.118 OF 2005 Shankar s/o Shamrao Rokade, Age 70 years, Occ. Service, now retired, R/o Jintur, Tq. Jintur, District Parbhani ... PETITIONER (Original J.D. No.16) VERSUS 1. Ratanlal s/o Dagadulal Kalal, died, through L.Rs. 1A) Deepak Ratanlal Jaiswal (Kalal), Age 47 years, Occ. Business, R/o Bhoiwada, Jintur, District Parbhani. 1-B) Latabai w/o Ratanlal Jaiswal (Kalal), Age 37 years, Occ. Household, R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. 1-C) Sangita w/o Ratilal Jaiswal (Kalal), Age 29 years, Occ. Household, R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. 1-D) Jyoti d/o Ratanlal Jaiswal (Kalal), Age 23 years, Occ. Household, R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. 1-E) Rupali d/o Ratanlal Jaiswal (Kalal), Age 20 years, Occ. Household R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. (Revision dismissed against Nos.1-D & 2 Civil Revision Application No.118/2005 1-E as per Registrar’s order dated 15.4.2010) 2. Pyarelal s/o Dagadulal Kalal, Age 61 years, Occ. Business, R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. (Revision dismissed against No.2 as per Court’s order dated 18.6.2007) 3. Shivprasad s/o Dagadulal Kalal, died L.Rs. 3-A) Kantabai w/o Shivprasad Jaiswal (Kalal), Age 66 years, Occ. Household, R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. 3-B) Santosh s/o Shivprasad Jaiswal (Kalal), Age 39 years, Occ. Police Constable, R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. 3-C) Somesh s/o Shivprasad Jaiswal (Kalal), Age 33 years, Occ. Business, R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. 3-D) Sow. Usha w/o Pyarelal Jaiswal (Kalal), Age 31 years, Occ. Household, R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. (Revision dismissed against No.3-D as per Registrar’s order dated 15.4.2010) 3E) Sow. Sandhya w/o Bhagwanlal Jaiswal (Kalal), Age 40 years, Occ. Household, R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. 3-F) Sow. Sangita @ Savita d/o Shivprasad Jaiswal (Kalal), Age 31 years, Occ. Teacher, R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. 3 Civil Revision Application No.118/2005 Revision dismissed against No.3-F as per Registrar’s order dated 15.4.2010 4. Indrajeevan s/o Dagadulal Kalal, died, L.Rs. 4-A) Sow.Nirmala w/o Indrajeevan Jaiswal (Kalal), Age 46 years, Occ. Household, R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. Revision dismissed against No.4-A as per Registrar’s order dated 15.4.2010 4-B) Manojkumar s/o Indrajeevan Jaiswal (Kalal), Age 24 years, Occ. Service, R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. 4-C) Mukesh s/o Indrajeevan Jaiswal (Kalal), Age 24 years, Occ. Service, R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. 4-D) Mahendra s/o Indrajeevan Jaiswal (Kalal), Age 21 years, Occ. Business, R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. 4-E) Mamta d/o Indrajeevan Jaiswal (Kalal), Age 21 years, Occ. Household, R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. (Revision dismissed against No.4-C to 4-E as per Registrar’s order dated 15.4.2010) 5. Ramesh s/o Dagadulal Kalal, Age 48 years, Occ. Private Service, R/o Bhoiwada, Jintur, Tq. Jintur, District Parbhani. ... RESPONDENTS ..... Shri M.M. Patil (Beedkar), Advocate for petitioner 4 Civil Revision Application No.118/2005 ..... CORAM : S.S. SHINDE, J. DATED : 20th June, 2011. ORAL JUDGMENT : 1. This Civil Revision Application is filed challenging the order dated 12.6.2002, in Regular Darkhast No.56/1986, below Exh. 110. 2. The counsel appearing for the revision petitioner invited my attention to the facts of the case, which are stated in the impugned judgment and in paras 2 and 3, and submitted that when the Regular Civil Appeal was ended in the compromise and objection petition was filed before the executing Court, it was incumbent upon the executing Court to take the note of the said objection petition and in the light of compromise, execution proceedings should have been disposed of. However, the executing Court dismissed the objection petition below Exhibit 110 on one of the ground that the respondents herein have filed Civil Application No.503/1994 before the High Court challenging the order in Regular Civil Appeal No.83/1991. According to the learned counsel appearing for the applicant, no such application is filed before this Court; the Jt. Civil Judge, Junior Division, Jintur has completely 5 Civil Revision Application No.118/2005 proceeded on wrong footing and rejected the objection petition. He further submits that, since the separate suit was filed by the applicants herein, which came to be dismissed and Regular Civil Suit was filed, in the said Regular Civil Appeal the plaintiffs in Regular Civil Suit No.103/1962 were the party – respondents and, therefore, the outcome of the Regular Civil Appeal i.e. compromise is binding on the respondents, the executing Court should have acted on the said compromise by entertaining the objection petition. Therefore, the counsel for objection petitioner would submit that, this Civil Revision Application be allowed. 3. Though the respondents are served and matter is heard for considerable period, the counsel for respondents is not present. 4. I have given due consideration to the submissions advanced by the learned counsel for the revision petitioner and also perused the impugned judgment and order passed by the learned Civil Judge, Junior Division, Jintur below Exh. 110 in Regular Darkhast No.56/1986. In para 8 of the said order, it is observed thus : 6 Civil Revision Application No.118/2005 “The said compromise indicates that the present objection petitioner was given the entire disputed property except 5 gunthas of field which came to be given to the present decree holder. It is immediate apposite to state here here that according to the decree holder, they have moved the Hon’ble High Court by challenging the said compromise. The record does not indicate that the Hon’ble Court has given a final verdict. Suffice it to say that, the said civil application which bears No.503/1994 is yet pending. To my mind this circumstance goes against the objection petitioner. 5. The aforestated finding of the trial Court is only on the basis of statement made by the original decree holders, i.e. respondents herein. The counsel for the applicant is justified in saying that without having any document on record about the filing of any proceedings challenging the order in Regular Civil Appeal, such observations are appearing in the impugned judgment. In fact no such proceedings have been filed by the respondents or no any proceedings are pending in this Court. Since the counsel for respondents is not present to counter the submission and nothing has been placed on record to suggest that such proceedings are filed before this Court or pending before this Court, therefore, in my opinion, the Jt. Civil Judge, Junior Division, Jintur was not correct in recording that the original decree holders have filed proceedings before the High Court. If that observation of the trial Court is not correct, the impugned judgment and order cannot be sustained. Therefore, 7 Civil Revision Application No.118/2005 in my opinion, ends of justice would meet if the impugned judgment and order is set aside. Accordingly, the judgment and order dated 12.6.2002, below Exhibit 110 in Regular Darkhast No.56/1986 is quashed and set aside. The said application below Exhibit 110 is restored to its original file. The same Court to hear the concerned parties afresh and dispose of the objection petition in accordance with law and on the basis of evidence, if any, placed by the parties on record. It is needless to mention that, interim order passed by this Court during the pendency of this Civil Revision Application will remain in operation till the final disposal of said objection petition. The Civil Revision Application is allowed to above extent and same stands disposed of. 6. Record and proceedings, if any, be sent back to the concerned Court forthwith. ( S.S. SHINDE, J. )