Research › Search › Judgment

Bombay High Court · body

2012 DIGILAW 545 (BOM)

Uttam Murari Kadam v. Hajira Begum Nisar

2012-03-12

R.M.SAVANT

body2012
Judgment : 1. The above Second Appeals arise out of the Judgment and Orders all dated 29-3-2011 passed by the Learned Ad-hoc District Judge-1, Thane, by which, the Appeals being Civil Appeal Nos.6, 7 and 8 of 2010 came to be dismissed. Though the orders are separate, they are based virtually on the same set of facts. 2. Shorn of unnecessary details, the few facts necessary to be cited for adjudication of the above Appeals can be stated thus: The Appellants in Second Appeal No.374 of 2011 and the Appellants in the companion Appeals are obstructionists in the execution proceedings launched by the Respondent Nos.1 to 3 herein. The Respondent Nos.1 to 3 herein are the decree holders in Regular Civil Suit No.1064 of 1995. The said suit was compromised between the parties i.e. the Respondent Nos.1 to 3 herein who were the Defendants and the Respondent No.4 builder / developer who was the original Plaintiff. The said compromise decree was dated 29-10-1996. The decree passed in terms of the said compromise, was put in execution by the Respondent Nos.1 to 3 by filing Regular Darkhast No.16 of 1999. The Appellants above named claimed to have purchased a shop each from the Respondent No.4 herein. It is an undisputed position that the Appellants have purchased the said shops by agreements of different dates but near about 11-1-2006 (which is the date of agreement in Second Appeal No.374 of 2011) The Appellants on the basis of the said agreements and since they were in possession of the shops in question, filed applications in the said execution proceedings for obstructing the said decree on the ground that they were bonafide purchasers of the said shops, for value without notice. The said applications filed by the Appellants which were numbered as Exhibits 239, 246 and 253 respectively were rejected by the Executing Court by Order dated 14-9-2009. The Executing Court held that the Appellants had purchased the shops in question during the pendency of the proceedings in the Executing Court and therefore could not be said to be bonafide purchasers for value without notice in the light of the fact that the lis pendence notice was registered in respect of the property in question which was the subject matter of the compromise decree. 3. 3. Aggrieved by the said Order dated 14-9-2009 passed by the Executing Court rejecting their applications, the Appellants had filed Writ Petitions. It is not necessary to advert to the said intervening facts. Suffice it to say that ultimately the Appellants filed Appeals in the District Court against the said Order dated 14-9-2009 which as mentioned herein above were numbered as Civil Appeal Nos.6, 7 and 8 of 2010. The Lower Appellate Court considered the said Appeals and by the impugned Judgment and Orders all dated 29-3-2011 dismissed the said Appeals. The Lower Appellate court confirmed the finding of the Trial Court that the Appellants i.e. the obstructionists have purchased the property i.e. the three shops during the pendency of the execution proceedings. However, what is significant to note in the context of the present Second Appeal, is the fact and that the Lower Appellate Court has held that in view of Rule 102 of Order 21 of the Civil Procedure Code, the Appellants who had purchased the shops during the pendency of the proceedings, would not be entitled to the protection of Rules 98 and 100 of the CPC. The Lower Appellate Court relied upon the Judgment of the Apex Court reported in (1998) 3 SCC 723 in the matter of Silverline Forum Pvt. Ltd. Vs. Rajiv Trust wherein the Apex Court has held that where the resistance is caused or obstruction is offered by a transferee pendente lite, the scope of adjudication is confined to the question whether he was a transferee during the pendency of a suit in which the decree was passed. Once the finding is in the affirmative, the Executing Court must hold that he had no right to resist or obstruct and such person cannot seek protection from the Executing Court. The Lower Appellate Court therefore relying on the said Judgment held that the obstruction of the Appellants cannot be countenanced. The Lower Appellate Court therefore by the impugned Judgment and Orders all dated 29-3-2011 was pleased to dismiss the Appeals. 4. The substantial question of law therefore which arises for consideration in the above Second Appeals is to the following effect: “Whether the Lower Appellate court could have relied upon Rule 102 of Order 21 of the CPC to hold that the Appellants herein are not entitled to obstruct the execution of the decree.” 5. Heard the Learned Counsel for the parties. 6. Heard the Learned Counsel for the parties. 6. On behalf of the Appellants though various contentions as regards limitation, identity of the property, pecuniary jurisdiction of the Trial court etc. were sought to be raised, it is not necessary to go into the said aspects in view of the fact that it is the submission of Shri Mehta the Learned Counsel appearing on behalf of the Appellants as well as the Learned Counsel appearing on behalf of the Appellants in the companion Appeals that Rule 102 could not have been relied upon by the Lower Appellate Court as the said Rule has been deleted from the CPC on 5-9-1983, in so far as the State of Maharashtra is concerned. The Learned Counsel would contend that the Lower Appellate Court having considered the Appeals on the touchstone of Rule 102, the said consideration was vitiated on the ground of having applied a Rule which has no application in so far as the State of Maharashtra is concerned. 7. The Learned Counsel appearing for the Respondent Nos.1 to 3 Mrs. Karnik had sought time to consider the said position arising out of the submission made by the Learned Counsel for the Appellants. The above Appeals were accordingly adjourned on 7th March, 2012, so as to enable Mrs. Karnik to appraise herself of the position that would arise on account of the deletion of the said Rule 102. 8. Today when the matters are called out, the Learned Counsel Mrs. Jadhav holding for Mrs. Karnik fairly states that the said Rule 102 in fact stands deleted from the statute from 5-9-1983 and since the Lower Appellate court has considered the said Appeals by applying a provision which is non existent in so far as the State of Maharashtra is concerned, the same would impinge upon the legality and validity of the impugned Orders. 9. Having heard the Learned Counsel for the Appellants and the Learned Counsel for the Respondent Nos.1 to 3 I have bestowed my anxious consideration to the rival contentions. The instant case is a case where the persons who have purchased the shops in question are seeking to obstruct the execution of the decree passed in the said Regular Civil Suit No.1064 of 1995. The instant case is a case where the persons who have purchased the shops in question are seeking to obstruct the execution of the decree passed in the said Regular Civil Suit No.1064 of 1995. Though both the Courts below have concurrently held that the Appellants/obstructionists have purchased the properties during the pendency of the proceedings before the Executing Court, what is relevant to note is that the Lower Appellate Court has by relying upon Rule 102 of Order 21 has come to a conclusion that the obstructionists are not entitled to obstruct the execution of the decree as they have purchased the suit property during the pendency of the proceedings before the Executing Court. The said aspect of the Appellants right to obstruct the execution of the decree is therefore rejected on the touchstone of Rule 102 of Order 21 of the CPC. There can be no dispute in respect of the fact that the said Rule 102 has been deleted on 5-9-1983 as per the Bombay Amendment and therefore does not apply in so far as the State of Maharashtra is concerned. Since the Lower Appellate Court has considered the Appeals filed by the Appellants on the touchstone of Rule 102 by applying the said Rule 102 which is non existent, the said consideration of the Lower Appellate Court can be said to be vitiated on the said count and therefore has the effect of impinging upon the legality and validity of the impugned orders passed by the Courts below. If Rule 102 is not to apply, then the consideration would be different in so far as the defence of the obstructionists to the execution of the decree is concerned. However, by applying the said Rule 102 of Order 21, the right of the Appellants to obstruct the said decree was virtually nullified. Hence, in my view, the impugned Judgment and Orders passed by the Lower Appellate Court cannot be sustained. 10. In the light of the above, the impugned Judgment and Orders passed by the Lower Appellate Court would have to be quashed and set aside and the Appeals in question being Civil Appeal Nos.6, 7, and 8 of 2010 would have to be relegated back to the Lower Appellate Court for a denovo consideration of the said Appeals. 10. In the light of the above, the impugned Judgment and Orders passed by the Lower Appellate Court would have to be quashed and set aside and the Appeals in question being Civil Appeal Nos.6, 7, and 8 of 2010 would have to be relegated back to the Lower Appellate Court for a denovo consideration of the said Appeals. Such denovo consideration would be de hors the application of Rule 102 of Order 21 which as indicated above, already stands deleted. The question of law as framed above accordingly stands answered in terms of the above. 11. The above Second Appeals are accordingly allowed and the following directions are issued: (i) The impugned Judgment and Orders all dated 29-3-2011 passed in Civil Appeal Nos.6, 7 and 8 of 2010 by the Learned Adhoc District Judge-1, Thane stand set aside and the Appeals are relegated back to the Lower Appellate Court for a denovo consideration. (ii) The Lower Appellate Court to hear and decide the Appeals afresh, de hors the application of Rule 102 of Order 21 of the CPC by giving proper opportunity to the parties. (iii) It is clarified that none of the contentions of the parties on merits have been dealt with and the said Appeals would be decided by the Lower Appellate Court on their merits and in accordance with law. (iv) The parties to appear before the Lower Appellate Court on 2nd April, 2012 at 11.00 a.m. The Lower Appellate Court to thereafter hear and decide the said Appeals latest by 16th July, 2012. Since the parties have been engaged in litigation for sometime, the Lower Appellate Court would be well advised to hear and decide the Appeals within the time frame mentioned as above, and not seek extension of time to decide the same. (v) There is an order of status-quo operating in the above Appeals. (vi) Parties to bear their respective costs. The same would continue pending the decision on the said Appeals by the Lower Appellate Court on their remand. (vii) In view of the disposal of the above Appeals the Civil Applications do not survive and are accordingly disposed of as such.