1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3048 OF 2008 Vilas S/o Dongarlal Jaiswal } Age : 54 Years, Occ. : Trader, } R/o : 2, Jay Nagar, Sagar Park, } Jalgaon. } .... PETITIONER V E R S U S 1. Prabhakar S/o Dongarlal Jaiswal } Age : 66 Years, Occ. : Trader, } R/o : 39, Vina Nagar ( Man Sarovar) } In front of Bombay Hospital, } Indore ( M.P. ) } 2. Ashok S/o Dongarlal Jaiswal } Age : 64 Years, Occ. : Trader, } R/o : 179, Visanji Nagar, } Ground Floor, Karve Road, } Jalgaon. } .... RESPONDENTS Mrs. Anjali B. Dube, Advocate for Petitioner. Mr. G.V.Wani, Advocate for respondent no. 1. Mr. M.M.Bhokarikar, Advocate for Respondent no. 2. Mr. D.R.Kale, A.G.P. for State. WITH WRIT PETITION NO. 5624 OF 2008 WITH CIVIL APPLICATION NO. 8807 OF 2009 AND CIVIL APPLICATION NO. 12344 OF 2009 2 WITH WRIT PETITION NO. 5625 OF 2008 WITH CIVIL APPLICATION NO. 8809 OF 2009 AND WRIT PETITION NO. 945 OF 2008 WITH CIVIL APPLICATION NO. 8808 OF 2009 WITH CIVIL APPLICATION NO. 11251 OF 2008 AND CIVIL APPLICATION NO. 1070 OF 2009 AND CIVIL APPLICATION STAMP NO. 11725 OF 2009 Mr. M.M.Bhokarikar, Advocate for Petitioners. Mr. G.V.Wani, Advocate for respondent no. 1. Mrs. Anjali B. Dube, Advocate for Respondent no. 2. Mr. D.R.Kale, A.G.P. for State. [ CORAM : V.R.KINGAONKAR, J. ] DATE : 03/02/2010 ORAL JUDGMENT : 1. These four (4) Petitions are being disposed of together. These Petitions reflect as to how multiplicity of litigation is created and an attempt is made to make out mountain out of mole hill. In fact, there appears even no mole hill. 2. Heard learned counsel for the parties. 3 3. It would be useful to refer the parties by their first names for sake of convenience. Vilas and Prabhakar are respondents the petitions filed by petitioner Ashok. The latter is respondent in one of the petitions filed by Vilas. 4. The Writ Petition Nos. 5624 of 2008 and Writ Petition Nos. 5625 of 2008 are inter-linked and arise out of same orders. The prayer clauses in both these petitions would show that the attempt is to undo what was done in the past through various Judgments of the trial court, appellate court and this court. The prayer clauses ‘ c ’ , ‘ d ’ and ‘ e ’ may be reproduced as follows : “ ( c ) The Order passed by the Hon. Civil Judge, Senior Division, Jalgaon in the Special Execution Petition NO. 31/1995 under Ex. 103 on 20/9/2000 as well the Order passed on 21/4/2001 of confirmation of sale and the order passed under Ex. 228 on 15/12/2001 of issuing ‘ Sale Certificate ‘ may kindly be quashed and set aside ” . “ ( d ) The orders passed by the Hon. High Court against the orders passed in the Special Execution Petition NO. 31/1995 under Ex. 30 on 14/12/2007, under Ex. 103 on 20/9/2000 of auction, under Exh. 269 and 276 on 19/12/2001, under Ex. 207 on 10/4/2001 and 18/4/2001 in several proceedings as mentioned 4 in this petition may kindly be reviewed sue moto in the interest of justice ” . “ ( e ) The order may kindly be passed that the Special Civil Suit No. 333/1998 may kindly be directed to be heard expeditiously which is pending in the Court of Hon. Civil Judge, Senior Division, Jalgaon ”. 5. Prabhakar is the eldest, Ashok is middle and Vilas is the youngest amongst the 3 real brothers. Prabhakar and Vilas filed Suit ( Special Civil Suit No. 44 of 1985 ) for partition and separate possession in respect of a house property situated at Jalgaon. The Suit was decreed. The Appeals preferred by unsuccessful defendant – Ashok were dismissed. The High Court approved the final decree and thereafter execution application ( R.D. No. 31 of 1995 ) was filed by Prabhakar and Vilas, original plaintiffs, for effecting partition of the house property. A Court Commissioner was appointed. The report of Court Commissioner indicated that the house property was indivisible and it was not pragmatic to divide it by mets and bounds. Be it noted here that Prabhakar resides at Indore and perhaps was not interested in obtaining his share by dividing the property and was satisfied on obtaining the money of value of his share. 6. The house property was put up on sale. There were several objections raised by petitioner Ashok. A heap of such applications had 5 been decided and ultimately the executing court dismissed all the objections. The appeals preferred by him ( Ashok ) also failed. 7. The house property was ultimately auctioned but there were no bidders and, therefore, the executing court allowed the parties to participate in the auction proceedings. Ashok was also a bidder and participated in the auction proceedings. However, Decree Holder Vilas tendered highest bid, which was accepted. The sale was challenged by petitioner Ashok by filing Appeal, which came to be dismissed. His Writ Petition also was dismissed against the final order, which confirmed the sale. Decree Holder No. 1 Vilas deposited the entire amount in the executing court. Sale Certificate is already issued in his favour. The possession of the house property is also delivered to him in pursuance to the execution proceedings and, therefore, R.D. No. 31 of 1995 is disposed of as satisfied. 8. The two ( 2 ) petitions filed by petitioner Ashok agitate the same grounds for challenging the sale. The two ( 2 ) petitions ( Writ Petition No. 5624 of 2008 and Writ Petition No. 5625 of 2008 ) are no short of repetitive submissions of the same grounds, which were eventually rejected by the executing court, the appellate court and this court. Considering the nature of prayers in the petitions, I find it difficult to entertain the petitions. 6 9. Mr. Bhokarikar contended that the rights of petitioner Ashok and his wife – Savitribai are likely to be affected if the sale is not set aside because they agreed to purchase the undivided share of Decree Holder No. 1 Prabhakar by virtue of an agreement of sale dated 22/7/1996. He would submit that a separate Suit for specific performance of the said agreement of sale is instituted by them and is pending before the trial Court and, therefore the sale of the house property is likely to affect their rights, which are yet to be crystallized and are being sought through the legal process. He further points out that other 2 Second Appeals are pending in this Court in relation to other litigations between the same parties in respect of other property items. He submits that the other Second Appeal Nos. 1401 of 2005 and 1495 of 2005 are admitted by this Court and ultimate result of those Appeals is likely to be affected due to finalization of the sale certificate. He invited my attention to certain observations in, “ Ganpatbhai Mahijibhai Solanki vs. State of Gujarat & Others ” (2008 AIR SCW 6816), “ Jhanda Singh & Ors. vs. Gram Sabha of village Umri & Ors. ” 1971 (3) SCC 980, “ Dr. Sewa Singh vs. Smt. Ravinder Kaur & another ” 1971 (3) SCC 981, “ Sheela Sohanlal Ghai & Ors. vs. Snehalata Sohanlal Ghai & Ors. ” 1999 (2) Bom.C.R. 282, “ Kancherla Laxminarayana vs. Mattaparthi Shayamala & Ors. ” (2008 AIR SCW 2800), “ Anubai w/o Vishnu Savant vs. Vithoba Shripati Savant (deceased) & Ors. ” 2004 (1) Mh.L.J. 545, “ T.Vijendradas & anr. vs. M.Subramanian & Ors. ” (2007) 8 SCC 7 751, “ Nani Gopal Paul vs. T.Prasad Singh & Ors. ” (AIR 1995 SC 1971), Chinnammal & oths. vs. P. Arunugham & anr. ” (1990) 1 SCC 513, “ Bholanath Karmarkar vs. Sailendra Nath Pramanik ” (AIR 1984 CALCUTTA 319 ), “ Dr. Kishor Chand Kapoor & Oths. Vs. Dharam Pal Kapoor & Oths. ” (AIR 1987 SC 66), “ Punjab National Bank vs. Sahujain Charitable Society & Oths. ” (AIR 2007 SC 2651). 10. In my opinion, the submissions of Mr. Bhokarikar do not hold any water. The litigation regarding house property in question was on altogether different footings. The basic contention of the two ( 2 ) brothers ( Decree Holders ) - Prabhakar and Vilas was that the house property in question was jointly purchased by them and petitioner Ashok and, therefore, each of them had right to claim separate share. All along, during various rounds of litigations, more than half a dozen, the contentions of petitioner Ashok were repelled and various objections raised during the execution proceedings also came to be rejected. He had come to this Court on various occasions against interim orders of the executing court. 11. Mr. Bhokarikar would submit that rights of petitioner Ashok and his wife Savitribai, as prospective purchasers of the undivided share of Prabhakar can not be trampled and, therefore, the sale could not have been effected by the executing court. I do not find 8 any substance in this contention because the R.D. No. 33 of 1995 was filed much prior to the so called agreement of sale dated 22/7/1996 and any agreement during the pendency of the said execution application could not have been recorded as adjustment of the claim without certification under Order XXI Rule 2 of the Code of Civil Procedure. There was no application for certifying any adjustment of the claims between petitioner Ashok and said Decree Holders i.e. Prabhakar and Vilas. The authorities referred to by Mr. Bhokarikar are not applicable to the fact situation obtained in the present case. 12. So far as other two ( 2) petitions are concerned, it may be stated that those petitions are filed in order to stall payment of the amount which has been deposited by the auction bidder i.e. Vilas. The sale has become final and said Vilas had already received possession as well as sale certificate. It does not lye in his mouth, therefore, that the amount be not disbursed in accordance with the final order or under the decree. The only contention raised by him is regarding the encumbrances which were not taken care of. The simple solution to this would be to direct payment of the encumbrances from the amount which is deposited in the court but that does not mean deprivation of the other two ( 2 ) brothers from receiving their due share. In so far as petition preferred by Ashok is concerned, it may be said that the amount payable to Decree Holder Prabhakar is the only contraventional payment, because alleged agreement of sale is regarding the undivided 9 share of the later. It will be appropriate, therefore, to give direction to the executing court to make disbursement on certain conditions. 13. In view of the foregoing discussion, the Writ Petition Nos. 5624 of 2008 and 5625 of 2008 are dismissed. The other two ( 2) petitions are also dismissed with directions as below : (I) The executing court shall ascertain from Decree Holder Vilas and shall enquire about dues of municipal taxes etc. and clear the encumbrances due till date of the auction sale from the deposited amount and shall, thereafter, disburse the amount as per shares of each of the brother. (II) The amount payable to Decree Holder Prabhakar shall be paid only on obtaining a bank guarantee to the extent of Rs. 3,00,000/- ( Rupees Three Lacs )from him so as to ensure refund of the earnest amount along with other benefits, if any, to Ashok and his wife Savitribai if their Suit is ultimately decreed against him, for alternate relief. (III) The executing court shall disburse the remaining amount as per shares of the remaining two ( 2 ) brothers. 14. It is made clear that if at all the suit filed by Ashok and his wife Savitribai is decreed and the trial court directs re-opening of the 10 sale proceedings, the parties will be bound by such direction. 15. Since there is no stay order issued by this Court in Second Appeal Nos. 1401 of 2005 and 1495 of 2005 and the subject matter of those Second Appeals are quite different, unless there is specific order by this Court in the said Second Appeals, the present sale proceeding be deemed as concluded in the terms mentioned above. The petitions are accordingly dismissed. No costs. Rule is discharged in Writ Petition No. 3048 of 2008. All Civil Applications are disposed of. [ V.R.KINGAONKAR ] JUDGE knp/WP5624............09 11