1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.990 OF 2007 WITH CIVIL APPLICATION NO. 1802 OF 2007 Shri Dhanpal Aannaso Tare ...Appellant. v. Shri Balu Gurupad Kurundwade & Anr. ...Respondents. Mr.V.B.Rajure, adv. For the Appellant. Mr.Vijay Killedar ,adv. For the Respondent Nos.1 and 2. CORAM : J.H. BHATIA, J. DATED : 15th September , 2009 ORAL JUDGMENT: 1 Heard the learned counsel for the Parties. 2 The following substantial question of law arises in the matter: “Whether the First Appellate Court was justified in allowing the appeal filed by the defendants on the ground that plaintiff or his father had already taken objection in the execution proceeding in connection with auction of the suit property at the behest of the bank ?” 3 The appellant is original plaintiff in regular civil suit no.71 of 2000. According to the plaintiff, suit house no.354 is situated in Ward No.12 within Ichalkaranji Municipal area. Said house originally belonged to Gurupad Kurundwade, father of the defendant nos.1 and 2, 2 who are the respondents in this appeal. According to the plaintiff, the said house was purchased by his father Anna Tare from Gurupad under the registered sale deed dated 21.7.66. Since then he was in possession of the property as owner. Anna bequeathed the said house to his son, i.e., the plaintiff under the will dated 14.4.1984. He died on 27.11.1988 and thus, the plaintiff became owner of the house. According to the plaintiff, defendants had no right or title over the property but they had wrongly got their names recorded in the property by a mutation entry illegally and taking benefit of that, they were obstructing possession of the plaintiff over the suit house and were also trying to alienate the same. Therefore, he filed suit for perpetual injunction against the defendants. The learned counsel for the respondents/defendants contends that defendants are actually in possession of the property. 4 Defendants contended that their father had taken loan of Rs. 1,000/- from Ichalkaranji Janata Co-operative Bank Ltd. in the year 1966 and for non payment of that loan, house was attached and later on, it was put to public auction wherein one Gurusidhappa purchased it. Execution proceedings for taking possession were pending wherein plaintiff’s father had taken objection. That objection was pending. It was contended that in view of these circumstances, the suit is not tenable. 3 Trial Court decreed the suit in favour of the plaintiff. Defendants preferred regular civil appeal no.193/05. That appeal was allowed by the Ad-hoc District Judge at Ichalkaranji mainly on the ground that execution proceedings were pending wherein objection was already taken and, therefore, suit is not tenable. 5 The learned counsel for the plaintiff/appellant points out that execution proceeding came to be dismissed in default in the year 2005 and the objection taken by the plaintiff or his father in that proceeding was never dismissed. If there would be any question between auction purchaser Gurusidhappa and the present plaintiff arising out of execution, all those questions could be decided only in execution proceedings. However, the present suit has nothing to do with the said execution proceedings and there is nothing to show that possession of the property was taken away from the plaintiff and it was given to bank or to auction purchaser Gurusidhappa. In this suit, the Court is required to see whether the plaintiff is in possession of the property and the defendants have got any right to interfere in his possession. In view of these circumstances, the Appellate Court was not justified in allowing the appeal and dismissing the suit on the ground that objection taken by the plaintiff or his father in execution proceeding was already pending. 4 The trial Court should have heard and decided the matter on merits. 6 At this stage, with consent of the learned counsel for both the parties, appeal is allowed and the impugned judgment passed by the Ad-hoc District Judge I is hereby set aside and the Regular Civil Appeal No.193/05 is hereby remanded back to the First Appellate Court to decide the said appeal on its own merits without being influenced by pendency of any execution proceeding or by any observations made in this order by this Court. Parties shall appear before the First Appellate Court on 13th October, 2009 and the Appellate Court shall hear and dispose of the appeal as early as possible and preferably within three months. 7 Hence, the appeal stands disposed off. As the appeal itself is disposed off, civil application no.1802 of 2007 does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)