1 wp-6753-11.sxw mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6753 of 2011 Dhondiba Devram Bhondave & Ors. .. Petitioners Versus Baban Namdeo Bhondave & Ors. .. Respondents Mr. Arvind Purohit for the Petitioners Mr. Sachin Pawar for the Respondent No.1 CORAM : R.M.SAVANT, J. DATE : 7th DECEMBER, 2011 P.C. : 1 The above Petition takes exception to the Order dated 20-6-2011 passed by the Learned District Judge-14 and Additional Sessions Judge, Pune, by which Order, the Appeal filed by the Respondent No.1 herein being Misc Civil Appeal No.44 of 2011 came to be allowed and resultantly the Order dated 28-1-2011 granting temporary injunction to the Petitioners herein i.e the original Plaintiffs came to be set aside. 2 The Petitioners herein are the original Plaintiffs in Regular Civil Suit No.2362 of 2010 who have challenged the compromise decree passed in Regular Civil Suit No.257 of 2006, as it is their case that the said decree has been fraudulently obtained without making them parties in the said suit. The said Regular Civil Suit No.2362 of 2010 has been filed for 2 wp-6753-11.sxw permanent prohibitory injunction restraining the Defendants not to execute the compromise decree and obtain possession in terms of that decree, for which the Regular Darkhast No.13 of 2009 has been filed. 3 It would be relevant to note at this stage that the Regular Civil Suit No.257 of 2006 was filed by the Respondents herein along with two others who were the Plaintiffs in the said suit. The said suit was filed for implementing the oral partition which had taken place in the year 1983 between the four branches of the heirs of one Balvant Bhondave. The said Balwant Bhondave had four sons i.e. Jaywant, Narayan, Namdeo and Damu and in the said partition 1/4th share of the ancestral property was allotted to each branch collectively. The brother of the Petitioner No.1 Nanasaheb Bhondave was the Defendant No.2 in the said suit. The said suit was compromised in terms of the compromise dated 11-1-2009 and the compromise decree in terms of the said compromise came to be passed in the said suit. The Petitioners herein who are the heirs of one Deveram who was the son of Jaywant, have filed Regular Civil Suit No. 2632 of 2010 challenging the said compromise decree as having been obtained by fraud and without joining them parties to the said Regular Civil Suit No.257 of 2006. 4 It appears that pending the said Regular Civil Suit No.257 of 2006, the Plaintiffs in Suit No.2362 of 2010 i.e. the Petitioners herein along with Nivruti Jaywant Bhondave-Defendant No.8 and Maruti Jaywant 3 wp-6753-11.sxw Bhondave- Defendant No.9 had sold off their 1/4th share in Survey No.148 admeasuring 0.69 H to M/s. United Infra Developers by a registered Sale Deed dated 14-08-2008. Thereafter, two further Sale Deeds dated 3-2-2009 in respect of Survey No.131/2 and Sale Deed dated 6-4-2010 in respect of Survey No.139/3 were executed by the Plaintiffs. In so far as, Survey No.131/2 is concerned, the Plaintiffs along with their co-sharers have sold out their share in favour of one Pandurang Tewelekar. It appears that the aforesaid facts are not part of the pleadings of the Regular Civil Suit No.2362 of 2010. 5 The Plaintiffs in the said Regular Civil Suit No.2362 of 2010, moved an application for temporary injunction which was numbered as Exhibit-5 and the said application was opposed by the Respondent No.1 herein by filing his reply. The Trial Court by its Order dated 28-1-2011, allowed the said application for temporary injunction and restrained the Defendants from executing the compromise decree passed in Regular Civil Suit No. 257 of 2006. The Trial Court considered the said three Sale Deeds however on the ground that the Plaintiffs should be given a chance to explain them and also on the ground that the Plaintiffs were not parties to the said Regular Civil Suit No.257 of 2006, allowed the said application for temporary injunction. 6 Aggrieved by the said Order dated 28-1-2011 passed by the Trial Court granting temporary injunction to the Plaintiffs, the Respondents 4 wp-6753-11.sxw herein filed Misc Civil Appeal No.44 of 2011 challenging the said Order. The First Appellate Court considering the Sale Deeds executed by the Plaintiffs in respect of Survey No.148, Survey No.131/2 and Survey No. 139/1/1, by Sale Deeds dated 14-8-2008, 3-2-2009 and 6-4-2010, held that the said compromise decree has been acted upon and the Plaintiffs, and after enjoying the fruits of the said decree are now stalling the execution of the said decree when the Defendants to the said Suit i.e. the Respondents herein applied for execution of the same. 7 It is sought to be contended by Mr. Purohit the Learned Counsel appearing for the Petitioners that the Petitioners herein were the necessary parties to the said suit No.257 of 2006 and that there was no material on record for the First Appellate Court to come to a conclusion that the said Nanasaheb Bhondave was representing the branch of Devaram of which the Plaintiffs are also a part in the compromise. The Learned Counsel would contend that in terms of the amendment to Rule 9 of Order 1 of the Civil Procedure Code, the suit i.e. Regular Civil Suit No. 257 of 2006 was bad for non-joinder of necessary parties. Per contra, the impugned order of the First Appellate Court is sought to be supported by the learned Counsel Mr. Pawar appearing for the Respondents, by contending that the Plaintiffs by executing the said Sale Deeds have in fact acted upon the said compromise decree and after enjoying the fruits of the said compromise decree are now seeking to stall 5 wp-6753-11.sxw the benefits from reaching the Respondents herein. 8 Having heard the learned Counsel for the parties and having gone through the record, in my view, there is no merit in the above Petition. Though it was sought to be contended on behalf of the Petitioners herein that the said compromise decree arrived at in the absence of the Plaintiffs, was illegal, as also that the said compromise decree was inexecutable. In my view, the said submissions cannot be countenanced in the teeth of the three Sale Deeds executed by the Plaintiffs. 9 The record discloses that in so far as, the Sale Deed dated 14-8-2008 was concerned, the same was in respect of the land bearing Survey No.148 which was executed by the Plaintiff No.1 and Plaintiff No. 2 along with Nivruti Jayawant Bhondave and Maruti Jaywant Bhondave, selling out their share of 0.69 H to M/s. United Infra Developers. Thereafter, in so far as Survey No.131/2 is concerned, the Sale Deed is dated 3-2-2009, to the said Sale Deed the Respondent No.1 herein i.e. Baban Bhondave was a consenting party who has consented to the Sale Deed without any sale consideration in view of the Compromise decree as the land in question was to go to his share on the execution of the said compromise decree though the revenue record was not corrected in terms of the compromise decree. It appears that the Plaintiff No.-1 Dhondiba and the Plaintiff No.2 Tarabai have also received the consideration for the Sale Deeds. The recital in the Sale Deed dated 3-2-2009 which is 6 wp-6753-11.sxw reproduced in the impugned order of the First Appellate Court unmistakably points out that the Defendant No.7 i.e. Nanasaheb Bhondave had represented the branch of the Devaram consisting of the Plaintiff No.1 and the Plaintiff No.2 in Regular Civil Suit No.257 of 2006, in which the compromise decree was passed. The findings recorded by the First Appellate Court is on the basis of the said three Sale Deeds, the Plaintiffs are therefore now estopped from questioning the said compromise decree as by their conduct they have acquiesced in the said compromise decree. The Trial Court, as can be seen, from the Order dated 28-1-2011 has without addressing the said issue has merely postponed the recording of finding in respect of the three Sale Deeds by observing that the Plaintiffs would have a chance to justify the same at the hearing of the said suit. In my view, the Trial Court erred in granting the discretionary relief by way of temporary injunction in the teeth of the aforesaid facts. The interference of the First Appellate Court with the discretion exercised by the Trial Court, therefore, cannot be faulted with. 10 Lastly, it is required to be noted that by Order dated 30-8-2011 passed by the Executing Court, the application filed by the Plaintiffs under Section 47 of the Civil Procedure Code objecting to the execution to the said compromise decree has been rejected. 11 In that view of the matter, no case for interference in the Writ Jurisdiction of this Court has been made out. The Writ Petition is 7 wp-6753-11.sxw accordingly dismissed. 12 However, the hearing of the Regular Civil Suit No.2362 of 2010 is expedited. Needless to state that the said suit would be tried on its own merits and in accordance with law, uninfluenced by the instant order. (R.M.SAVANT, J.)