1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7781 OF 2008 WITH WRIT PETITION NO. 4606 OF 2009 Mr. Peter Bhosale, (since deceased) by his heirs A) Hubert Peter Bhosale B) Flavian Peter Bhosale C) Jullius Peter Bhosale All r/a 6, Nagar Road, S.No.148, Hissa No.1, Yeravada, Pune 6. Petitioner Nos.A and C through Power of Holder i.e Petitioner No.B. .. Petitioners versus 1. Subhash R. Patil, An adult, Indian Inhabitant, Business, R/at.3A, Jail Road, Pune 411 006 2. Poona Diocesan Corporations Pvt Ltd. A registered Public Trust, Registered under the Bombay Public Trusts Act, having its registered office at Bishop’s House, Prince of Walles Drive, Pune 1, by its trustees (i) MSGR Valerian D’Souza, Age 43, Priest, R/at St.Patrick’s Catnedral, Prince of Wales Drive, Pune 1. (ii) Rev.Father George B.D’Souza, Age 59, Priest, R/at Catholic Church, Dhond. (iii)Rev.Father Edmund Fonseca, Age 55, Priest, R/at Ornella’s High School, Quarter Gate, Nana Peth, Pune 2. .. Respondents 2 WITH CIVIL APPLICATION NO. 348 OF 2010 IN WRIT PETITION NO.7781 OF 2008 Subhash R. Patil, An adult, Indian Inhabitant, Business, R/at.3A, Jail Road, Pune 411 006 .. Applicant versus Mr. Peter Bhosale, (since deceased) by his heirs A) Hubert Peter Bhosale B) Flavian Peter Bhosale C) Jullius Peter Bhosale All r/a 6, Nagar Road, S.No.148, Hissa No.1, Yeravada, Pune 6. Petitioner Nos.A and C through Power of Holder i.e Petitioner No.B. 2. Poona Diocesan Corporations Pvt Ltd. A registered Public Trust, Registered under the Bombay Public Trusts Act, having its registered office at Bishop’s House, Prince of Walles Drive, Pune 1, by its trustees (i) MSGR Valerian D’Souza, Age 43, Priest, R/at St.Patrick’s Catnedral, Prince of Wales Drive, Pune 1. (ii) Rev.Father George B.D’Souza, Age 59, Priest, R/at Catholic Church, Dhond. (iii)Rev.Father Edmund Fonseca, Age 55, Priest, R/at Ornella’s High School, Quarter Gate, Nana Peth, Pune 2. .. Respondents --- 3 Shri P.B. Shah for the Petitioners. Shri Madhav Jamdar for Respondent No.1. --- CORAM : ABHAY S. OKA, J. JUDGMENT RESERVED ON : 16th FEBRUARY, 2010 JUDGMENT PRONOUNCED ON : 17th MARCH, 2010 JUDGMENT : . These Writ Petitions arise out of a decree passed in a suit filed by the 2nd Respondent against one Peter Bhosale ( the predecessor of the Petitioners). The suit was for possession of the suit premises. The decree was passed by the Trial Court. The decree was confirmed in appeal. The decree has been confirmed up to this Court and the same has admittedly attained finality. An application for execution being Darkhast no.774 of 1983 was filed by the 2nd Respondent in the year 1983. On 19th August, 1998, an application at Exhibit 16 was made by the 1st Respondent praying that he may be impleaded as the Decree Holder in the execution application. The 1st Respondent relied upon the Sale Deed dated 31st March, 1984 executed by the 2nd Respondent in his favour which was allegedly registered on 14th May, 1984. It was pointed out in the said application that the 1st Respondent 4 was the 5th Respondent in Writ Petition No.910 of 1984 filed by the Petitioners for challenging the decree for possession. The said application was allowed by the Executing Court on 9th September, 1998. On an application made by the 1st Respondent, possession warrant was issued in the execution application. The said order was passed on 18th July, 2007. Thereafter, an application was made by the Respondent No.1 praying for re-issuing possession warrant. On 15th December, 2007, the Executing Court passed an order allowing the said application by which the possession warrant was re-issued. The Writ Petition No.7781 of 2008 has been filed by the Petitioners for challenging the aforesaid orders dated 9th September, 1998, 18th October, 2007 and 15th December, 2007. 2. In the execution application, the 1st Respondent made an application at Exhibit-19 on 20th March 1999. The said application was made for brining on record the legal representatives of the original Defendant- judgment debtor Peter Bhosale. The said application was made by pointing out that the Writ Petition for challenging the decree for possession was filed by the present Petitioners who are the legal representatives of the said Peter Bhosale. On 16th June, 2000, the said application was allowed by the Trial Court. The said order has been impugned by the petitioners filing the Writ Petition No.4606 of 5 2009. 3. Before adverting to the submissions made by the learned counsel appearing for the parties, it must be stated here that when these Petitions were placed on before this Court earlier , a submission was made by the learned counsel appearing for the Petitioners that the order dated 9th September, 1998 impleading the 1st Respondent as the Decree Holder was passed without notice to the Petitioners and without hearing the Petitioners. It was pointed out that though the Roznama of the execution application shows that the Vakalatnama of Shri B.S. Bhogal, advocate signed by the Petitioners is at Exhibit-27, in fact, said Vakalatnama is not on record. The learned counsel appearing for the Petitioners contended that Shri B.S. Bhogal, Advocate (hereinafter referred to as "the said Advocate") was never instructed by the Petitioners to appear in the execution application. At that stage, the learned counsel appearing for the 1st Respondent pointed out that the 1st Respondent was possessing a certified copy of the Vakalatnama at Exhibit-27 of the petitioners filed by the said Advocate. He pointed out that a true xerox copy of the certified copy has been annexed to the reply filed by the 1st Respondent. The learned counsel appearing for the Petitioners relied upon a rejoinder stating that the Petitioners had never engaged Shri B.S. Bhogal, Advocate to represent them in the execution though the Roznama shows that the 6 said Advocate had filed his Vakalatnama. The Petitioners asserted that though the Roznama shows that the application at Exhibit-28 was made by the said Advocate, in fact, said application is not on record. Another affidavit was filed by the Petitioner-A stating that he has not given any Vakalatnama to the said Advocate and in fact an office copy of the letter addressed by the Petitioners to the said Advocate recording that they had not given any Vakalatnama to the said Advocate is placed on record. By the said letter, a clarification was sought from the said Advocate. 4. Therefore, the record of the execution application was called for by this Court. The record disclosed that there is a clear entry made in the Roznama of 7th August, 2000 that a Vakalatnama was filed by Shri B.S. Bhogal, Advocate of the legal representatives of the judgment debtor. An entry was also made in the Roznama of the application at Exhibit-28 which was an application made by the judgment debtors for grant of time. Perusal of the record showed that both the documents Exhibits 27 and 28 were not found on record. The learned counsel appearing for the 1st Respondent produced on record for perusal of this Court a certified copy of the Vakalatnama at Exhibit-27 which was issued to the 1st Respondent on 12th September, 2008. The said Vakalatnama purportedly bears signature of the judgment debtor Nos. 7 1(b) and 1(c) (Petitioners A and B respectively) and the same appears to have been signed by the said Advocate. Therefore, by an order dated 16th October, 2009, this Court directed the learned Principal District Judge-I, Pune, to hold an inquiry on this aspect. The paragraph 6 of the order dated 16th October, 2009 passed by this Court reads thus:- “The learned Principal District Judge, Pune will hold an enquiry on this aspect. He may himself hold an enquiry or may direct any of the District Judges to hold an enquiry. It will have to be ascertained whether the said documents were in fact filed on record. An enquiry will have to be made as to how the said documents are not on record. While holding an enquiry, statements of all concerned including Shri B.S. Bhogal, Advocate will have to be recorded. The first Respondent will produce before the learned Principal District Judge the certified copy of the Vakalantnama at Exhibit-27. If it is found that Vakalatnama at Exhibit 27 was never filed, an enquiry will have to be made as to how a certified copy was issued. It is obvious that the learned District Judge will peruse all the relevant documents including all the registers and the records of certified copy section. The inquiry will be held after notice to the parties. A report shall be submitted by the learned Judge to this Court on or before 11th December, 2009. The report shall be kept in a sealed envelope. Alongwith the report, the learned District Judge will forward copies of the statements recorded and other material considered during the course of enquiry. The sealed envelope shall not be opened without prior permission of this Court.” 5. Accordingly, a detailed report has been filed on record in terms 8 of the order of this Court. The learned District Judge-1, Pune, conducted the inquiry. The learned Judge opined that the disputed documents at Exhibit 27 and 28 were in fact on the record of the execution application till 24th August, 2009 and thereafter the same were misplaced. The learned Judge also observed that the possibility of the Petitioners and particularly the Petitioner-B playing role in misplacing the documents at Exhibits 27 and 28 cannot be ruled out. The conclusions recorded by the learned District Judge-1, Pune, read thus:- “As to Point No.1: The enquiry reveals that the disputed documents viz. Vakalantnama Ex.27 and the application for time to file say Ex.28 were in fact filed on record of the Darkhast No.774/1983 and the same were available on record. Certified copy of Ex.27 was sought by the Decree Holder and that both the original documents were available on record till 24.08.2009 and thereafter only, the same were misplaced. As to point No.2: The enquiry reveals that the possibility of the Judgment Debtors, particularly, the witness no.3 -Shri Flavian in misplacing the documents Ex.27 and 28 from record of Darkhast with a view to pronlong the proceeding and to defeat the claim of the Decree Holder so as to debar him from enjoying the fruits of the decree passed in his favour long back on 28.07.1983, either by himself or through his agent. No malafides are prima facie seen on part of the concerned clerk dealing with the execution proceeding in misplacing the documents Ex.27 and 28.” 9 6. The parties were permitted to file objections , if any , to the report on inquiry submitted by the District Judge-1, Pune. 7. The Civil Application No.348 of 2010 has been preferred by the 1st Respondent. The 1st prayer in the application is for an appointment of the Court Receiver. The 2nd prayer is for directing the Petitioners in the Writ Petition to pay monthly compensation equivalent to market rate from 17th November, 1994. The 3rd prayer in the said application is for initiating action against the Petitioners under the Contempt of Courts Act, 1971. 8. The learned counsel appearing for the Petitioners submitted that while passing an order dated 9th September, 1998 on the application at Exhibit-16, the Petitioners were not heard. He submitted that when the said application was made, the Petitioners were not at all parties to the execution application though in the Writ Petition challenging the decree of eviction they were the Petitioners. He submitted that at no stage the first respondent placed on record a copy of the Sale Deed dated 31st March, 1984 executed by the 2nd Respondent in his favour. He submitted that the first respondent has produced a copy of Index-II of the alleged sale deed which is fabricated. He stated that the 10 petitioners have lodged a first information report about the fabrication of the said document. It is submitted that the order dated 16th June, 2000 which is impugned in the Writ Petition No.4606 of 2009 was passed without hearing the petitioners. He submitted that even the notice of the said application was not duly served to the Petitioners. He submitted that thus when the 1st Respondent was impleaded as the decree holder, the judgment debtor was already dead and the Petitioners were not brought on record. He submitted that as the alleged Sale Deed on the basis of which the 1st Respondent is claiming assignment from the second respondent is not placed on record, the execution application by the 1st Respondent is not maintainable. He submitted that there is nothing on record to show that the Petitioners had engaged Shri B.S. Bhogal, Advocate to appear for them in the execution application. He submitted that there is no material placed on record to show that the Vakalatnama at Exhibit-27 was on record. He submitted that the Petitioners had played no role as far as the allegations regarding misplacing the documents at Exhibits- 27 and 28 are concerned. He submitted that the conclusions drawn by the learned and District Judge were erroneous. He submitted that as the orders dated 9th September 1998 and 16th June 2000 are illegal, the subsequent orders passed of issuing warrant of possession are bad in law. 11 9. The learned counsel appearing for the 1st Respondent submitted that even in the Writ Petition filed by the Petitioners for challenging the decree of eviction, on the basis of Civil Application filed by the first respondent, he was impleaded as the 5th Respondent on the basis of the Sale Deed. He submitted that in various proceedings, the Petitioners have admitted the existence the Sale Deed and they have not disputed the sale deed. He submitted that the Vakalatnama of Shri B.S. Bhogal, Advocate which was signed by petitioners A and B was very much placed on record of the execution application on 7th August, 2000. He submitted that a false and frivolous stand has been taken by the Petitioners. He submitted that the Petitioners have gone to the extent of disowning the Vakalatnama of their own Advocate who has been admittedly appearing for them in many proceedings. He submitted that the conduct of the petitioners shows that they are responsible for misplacing the documents at Exhibits-27 and 28 as no one else was interested in misplacing the said documents. He submitted that the Petitioners have successfully prolonged the execution though the decree has attained finality way back in the year 1994. He submitted that the Civil Application made by the 1st Respondent be allowed and in any event the Petitions be dismissed by directing the Petitioners to pay compensatory costs. He placed 12 reliance on a decision of the Apex Court in the case of S.P.Chengalvaraya vs. Jagannath( AIR 1994 Supreme Court 853). He submitted that as the petitioners are guilty of practicing fraud , the petitions are required to be dismissed. 10. I have carefully considered the submissions. Admittedly, the second respondent is the original decree holder and the plaintiff. The second respondent and its trustees filed a suit for eviction against late Mr. Peter Bhosale (the predecessor of the petitioners). The suit was filed on the ground of arrears of rent. The suit was decreed. An appeal was preferred by the said Peter. The Appeal was dismissed. Writ Petition No. 910 of 1984 was filed for challenging the decree of eviction. The present petitioners were brought on record of the said writ petition as the legal representatives of deceased Peter. In the said Writ Petition , a civil application was made by the first respondent praying that he may be made a party respondent in the writ petition. In the said application, he specifically relied upon the sale deed executed on 31st march 1984 which was registered on 14th May 1984. The said application was allowed and the first respondent herein was impleaded as the fifth respondent to the said writ petition. The said writ petition was dismissed by this Court by judgment and order dated 17th November 1994. The first respondent was represented by a Counsel 13 in the said writ petition and the said respondent contested the writ petition. It appears from the judgment of this Court that in the said writ petition, the petitioners never challenged the locus of the first respondent. Moreover, the said Peter had filed Civil Suit No. 1 of 1987 against the second respondent for specific performance of the alleged agreement for sale executed by the second respondent in his favour. The said suit was filed on 10th April 1987. The present petitioners were brought on record in the said suit as the legal representatives of the deceased plaintiff Peter. The first respondent herein was made sixth defendant to the said suit. In paragraph 14 of the said suit filed in April 1987 there is a specific reference to the present execution application bearing Darkhast No. 774 of 1983. In paragraph 19 of the plaint in the said suit, there is a specific reference to a sale deed executed by the second respondent in favour of the present first respondent. In fact in the said suit, a declaration has been claimed that the said sale deed relied upon by the first respondent was null and void. Thus, in April 1987, the said Peter admitted execution of the sale deed in respect of the suit property by the second respondent in favour of the first respondent. Moreover, the said Peter was aware about the execution application which is the subject matter of the present writ petitions. It is pertinent to note that the present petitioners were brought on record of the said suit as the legal representatives of the plaintiff-Peter. The said 14 suit was dismissed by judgment and decree dated 11th June 2003. An appeal preferred by the petitioners for challenging the said judgment and decree was dismissed by this court by judgment and order dated 27th June 2007. Thus, the petitioners cannot plead ignorance about the sale deed executed by the second respondent in favour of the first respondent in as much as in the aforesaid suit they claimed a declaration that the said sale deed was null and void. The suit was dismissed and the decree of dismissal has been confirmed by this Court. In fact the petitioner had filed Special Civil Suit No. 54 of 1985 for various reliefs against the said Peter and others in respect of the same property on the basis of the same sale deed. Specific reliance was placed by the first respondent on the said sale deed in paragraph 2 of the plaint. The said Peter was the first defendant in the said suit. The present petitioners were party defendants to the said suit. An issue was framed on the title of the first respondent. The said suit was decreed on 10th December 1997 upholding the title of the first respondent. Hence, it is not open for the petitioners to make a grievance about non-production of the said sale deed in the execution application. The first information report filed by the petitioners is during the pendency of these petitions. The same appears to be an afterthought. It is pertinent to note that in all the proceedings referred to above, the second respondent and/or its trustees have never 15 challenged the status of the first respondent as the purchaser. Thus, the original Decree Holder has not challenged the status of the first respondent who is seeking to execute decree on the basis of a sale deed executed by the original Decree Holder. As a matter of fact, while passing the impugned order dated 9th September 1998 below application of the first respondent at Exhibit 16, the learned trial judge has specifically noted that the second respondent-original Decree Holder has no objection for adding the first respondent as the Decree Holder. Therefore, there is no merit in the contention of the petitioners that the application at exhibit 16 could not have been allowed by order dated 9th September 1998. By the said order, the first respondent was added as the Decree Holder. In view of rule 16 of Order XXI of the Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code"), as the execution was at the instance of a transferee (the first respondent), the decree could not have been executed without notice to the transferor. In the present case, the second respondent transferor has recorded a specific no objection. Hence, there is no merit in so far as the challenge to the order dated 9th September 1998 is concerned. 11. The proceeding of the execution application shows that on 20th March 1999, an application was made by the first respondent at 16 Exhibit 19 for bringing the petitioners on record as the legal representatives of the judgment debtor. On the said application, on 14th June 1999, the executing Court issued notice to the petitioners. The notice was made returnable on 20th of July 1999. The Roznama dated 20th July 1999 records that the notices at exhibits 20, 21 and 22 were duly served to the petitioners. The returnable date of notices was 20th July 1999. The Roznama of the execution application shows that after 20th July 1999, the execution application was adjourned on number of dates for passing order on application at Exhibit 19. The petitioners did not appear despite of service of notice. On 16th June 2000, by the order impugned in Writ Petition No.4606 of 2009 , the said application at Exhibit 19 was allowed. On 27th June 2000, the executing Court issued notice to the legal representatives of the judgment debtor (the petitioners herein) of the execution application. On 17th July 2000 the notices at exhibits 24, 25 and 26 were issued. The Roznama dated 7th August 2000 records that the notices were returned duly served. In the Writ Petition No. 4606 of 2009 , the petitioners have not challenged the aforesaid entries in the Roznama. There is no case made out that the notices at exhibits 24, 25 and 26 were not received by the petitioners. There is only a bald assertion that the petitioners were not served with the notice. The petitioners had full knowledge of the entries in the Roznama inasmuch as to the Writ 17 Petition No.7781 of 2008 , a true copy of the Roznama of the execution application has been annexed by the petitioners as exhibit C-1. Moreover, on 7th August 2000 , there is a clear entry in the Roznama that the said Mr.B.S.Bhogal, Advocate (hereinafter referred to as "the said advocate") filed vakalatnama at Exhibit 27 on behalf of the legal representatives of the judgment debtor and made an application at Exhibit 28 for grant of time. As pointed out earlier, the first respondent produced for the perusal of the court a certified copy issued by the executing court of the said vakalatnama which appears to be signed by petitioner A and B. As stated earlier, this Court ordered an enquiry as it was found that the original documents at Exhibit 27 and 28 where missing from the record. 12. The report submitted by the learned District Judge is on record. The conclusions recorded in the report are already quoted in earlier part of the judgment. The perusal of the report shows that: (i) The learned District Judge recorded statements of the members of the staff. He recorded statements of the parties as well as the said Advocate; (ii) The said Advocate stated that he received 18 instructions from the petitioners in the year 2000 to appear for them in the said execution application. He stated that he received Vakalatnama containing signatures of the judgment debtors from the petitioner B and he filed the same in the court on 7th August 2008. He stated that he received instructions in the year 2001 from the judgment debtors to withdraw his power and since then he is not appearing in the execution application. He admitted his handwriting and his signature on the disputed Vakalatnama at Exhibit