1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 205 0F 2010 *** Ambadas Nathu Ekshinge and others Versus Devidas Nathu Ekshinge *** 1. Heard learned counsel Mr. Shelke for the Petitioner. Perused the order impugned in this writ petition. 2. I am listing the cases, civil and criminal decided by the competent courts: (a) The Respondent filed Regular Civil Suit No.70 of 2001 in the Court of learned Civil Judge, Junior Division, Pathardi, Taluka Pathardi, district Ahmednagar somewhere on 14th March, 2001. Present Petitioner NO.1 was the defendant in the suit. This suit was for perpetual injunction under section 38 of the Specific Reliefs Act. This suit, after recording evidence by the parties, came to be decreed by the trial Court on 11th February, 2003. The judgment and decree passed by the trial Court is at Exhibit-B, page 17. (b) The Respondent / original plaintiff in 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. the suit, has filed Regular Darkhast No.25 of 2003 on 27th March, 2003 in the Court of learned Civil Judge, Junior Division, Pathardi for execution of the decree passed in Regular Civil Suit No.70 of 2001. (c) Regular Darkhast No.25 of 2003 was taken up before the learned Civil Judge, Junior Division and from the order passed on 6th August, 2005, it appears that the learned Judge considering the nature of the proceeding adjourned for orders below Exhibit-103 till next date i.e. On 30th August, 2005. In this Execution Petition, two prayers were made by the decree holder – original plaintiff. Firstly, since the defendant Nos.1 to 5 have broken the common Bandh on 5th March, 2003, and also have cut the trees and caused damage to the crop of Lucerne grass and gram and, therefore, they should be detained in civil prison and land Gat No.163 owned by the defendant should be 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. attached. Another prayer made was for police aid in favour of the petitioner. These prayers were available on page 28, part of the execution proceeding. (d) In response to the summons issued by the executing Court, judgment debtor Nos.1 to 3 have filed reply Exhibit-18 in trial Court (Exhibit-D, page 29 in this Court). The plaintiff Respondents seems to had applied for appointment of the Court Commissioner in execution petition NO.25 of 2003. Reply was filed to this application by the defendants, Exhibit-E, page 36. (e) For the alleged incident dated 28th December, 2002 at about 10.00 a.m. Complaint was lodged with the police station concerned against the petitioner Nos.1 to 4 (judgment debtor Nos.1 to 4). It was registered as S.T.C. No.1 of 2003. It was under sections 447, 427, 323, 504, 506 read with 34 of Indian Penal Code. This case ended in 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. acquittal, for benefit of doubt. Judgment of this case i.e. Certified copy, was produced in the trial Court. (f) It appears that another alleged incident took place on 30th December, 2002 at around 02.00 p.m on Dule Chandgaon to Pathardi road. This time, son of the decree holder/ plaintiff Mr. Prabhakar was the complainant and alleged injured person. Petitioner Nos.1 to 4 were the accused persons arraigned in that case. It was a criminal case for the offence punishable under section 326, 341, 323, 504, 506 read with 34 of Indian Penal Code. This case ended in conviction for the offence punishable under section 324, 341, 323, 506 read with 34 of Indian Penal Code. (g) The judgment debtor No.1 i.e. Original defendant in the suit, filed Regular Civil Suit No.229 of 1997 for recovery of encroached portion to the extent of 33 Ares. This suit, after hearing the parties, was 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. dismissed on merits. (h) It appears that the judgment debtor No.1 filed another suit Regular Civil Suit NO.244 of 1997 for recovery of alleged encroached portion to the extent of 33 Ares and this suit was also dismissed on merits. (i) The judgment debtor/ plaintiff, being aggrieved by the dismissal of the suit, filed first appeal in the first Appellate Court at Ahmednagar and the learned trial Court in para 19 has observed that this appeal was also dismissed and the said dismissal was not challenged by filing second appeal in the High Court. (j) It appears from the judgment of the trial Court that the order was passed below Exhibit-115 granting police aid in favour of the decree holder at the costs of the decree holder. There is report of the police Head Constable A. K. Shirke Exhibit-71 dated 29th December, 2003. Learned Judge, in para 21, 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. has observed that this report shows that Band between the field of decree holder and judgment debtor was not in existence. 3. The relationship among the parties is not in dispute. Plaintiffs and defendant/ sole in Regular Civil Suit No.70 of 2001 are real brothers. It is true that Petitioner Nos.2 to 5 were not impleaded as defendants in Regular Civil Suit No.70 of 2001. However, certified copy of the Execution Petition shows that they were impleaded as judgment debtor Nos.2 to 5 in the execution petition. 4. The decree passed in Regular Civil Suit No.70 of 2001 indisputably has attributed finality. The decree for perpetual injunction needs to be executed under Order 21 Rule 32 of the Code of Civil Procedure. On behalf of the Petitioner, learned counsel Mr. Shelke submits that the judgment delivered by the trial Court in Regular Civil 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. Suit No.70 of 2001 injuncts only judgment debtor No.1 i.e. Original sole defendant in the suit. He has invited my attention to Item No.2 of the operative part of the judgment of the trial Court in Regular Civil Suit No.70 of 2001. All along in this operative part of the judgment, word used by the learned Judge is “defendant”. According to the counsel for the Petitioner, this judgment, therefore, clamps down or prohibits only sole defendant i.e. Judgment debtor No. 1/ petitioner No.1 in this writ petition. In other words, there is not executable decree specifically against the Petitioner Nos.2 to 5 who are judgment debtor Nos.2 to 5 in Execution Petition. This argument, I am recording only for rejection. Reason is that, in civil suit or civil action a tricky litigant may try to over-turn the decree passed by the competent Court by setting up some other person. Law does not require that 8 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. every person against whom execution is sought must be specifically arrayed as defendant in the civil suit especially in a suit for perpetual injunction, considering such eventualities draftsman i.e. The plaintiff ordinarily is seeking decree of perpetual injunction against the defendant, his agent, servants or any other person acting on his behalf. In the case on hand, petitioner Nos. 2 to 4 indisputable are sons of Petitioner No.1. In execution petition, judgment debtor No.5 is arraigned by the decree holder with allegation that he is son in law of the defendant/ sole. Thus, it seems to be a family feud amongst the original plaintiff and sole defendant. On this background, the argument that it is a decree issued only against sole defendant and not against the judgment debtor Nos.2 to 5 cannot be accepted by me. 5. Mr. Shelke, learned counsel, also 9 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. submitted that at the instance of Petitioner No.1, measurement has taken place during the pendency of the execution petition. Copy of the measurement is on record. Said measurement map shows that original decree holder in the present case has committed an encroachment of around 0 Hectare 7 Ares land of the Petitioner NO.1. However, said map is not exhibited by the trial Court in the absence of formal proof. He also raised a grievance that measurer was not permitted to be examined on behalf of the Petitioner. That order, rejecting the application for examination of surveyor, was not challenged by the judgment debtor before the appropriate foram. In my view, in the absence of formal proof of the map, it was justifiably not exhibited by the trial Court. Rejection of the application for examination of the surveyor is not a subject of the present writ petition and, therefore, I am restraining 10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. myself from making any obser4vation on that point. Fact remains that is is unexhibited document which is on record of the executing Court. This circumstance, in my view, does not help the petitioners. The decree passed by the competent Court is not only paper decree, neither it is for decoration purpose. Decree passed by the Civil Court must be taken to the logical end. If the decree holder is interested and pursuing the execution of decree, it is the legal duty cast upon the Court competent to see that fruits of the decree is or made available to the decree holder. It can be expected fairly to be a principle of rule of law. Exception only will be quashing and setting aside the orders passed by the executing court by the competent court. In the case on hand, from the record, I am convinced that no such case exist. 6. Another important aspect of the present 11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. case is that the present petition, on behalf of the decree holder three witnesses were examined before the trial Court and on behalf of the judgment debtor defendant/ sole [judgment debtor No.1] himself has adduced evidence. Mr. Shelke, learned counsel took me through report of the Commissioner, page 40 of the compilation. He submitted that, this report does not specify that common Bandh has been broken down by the judgment debtors. The allegation of the decree holder that common Bandh has been broken down, dismantled by the judgment debtor Nos.1 to 4, is a matter of evidence. Evidence may be either oral or documentary. In the case on hand, the learned Judge was convinced, on the basis of the evidence, or material brought on record by the decree holder. Learned Judge, in fact, has evaluated the evidence led on behalf of the decree holder and the judgment debtors and, therefore, alone has passed the 12 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. impugned order. 7. The learned Judge has exonerated judgment debtor NO.5 Son-in-law of the original defendant, in the absence of convincing material. In my view, no case for interference in extra ordinary jurisdiction is made out. 8. Petition stands dismissed. However, there shall be no order as to costs. [S.B.DESHMUKH, J.] Dated:12/01/2010. ans/205