Writ Petition No.974 of 2006. Case: Kusum Dashrath Kharmare Vs Popat Madhav Gangarde. High Court of Bombay (India)
| Case Number | Writ Petition No.974 of 2006 |
| Counsel | N V Gavare, S B Bhapkar, S V Advant |
| Judges | S. B. Deshmukh, J. |
| Issue | Code of Civil Procedure, 1908 - Sections 9, 2(2) |
| Judgement Date | August 30, 2007 |
| Court | High Court of Bombay (India) |
Judgment:
Heard learned counsel for the parties.
Rule. Rule made returnable forthwith and taken up for final hearing, with the consent of the parties.
This petition takes an exception to the judgment and order dated 30th august, 2005, passed by the learned Civil Judge, Junior Division, Karjat, district ahmednagar, in Regular Darkhast No. 20 of 2002.
The brief resume of facts would suffice. The petitioner had filed Regular civil Suit No. 22 of 1981 for partition and separate possession of the suit properties. The suit came to be decreed by the trial Court, with costs. It was declared that the plaintiff was having l/9th share in the suit property. Separate inquiry was directed under Order XX, Rule 12 of the Code of Civil Procedure (hereinafter referred as the Code, for short). Preliminary decree, thus, was passed. Further direction was issued to send the precept to Collector for effecting partition. The decree seems to have been passed by the learned Civil Judge, junior Division, Karjat on 4th July, 1997. This decree was subject-matter of regular Civil Appeal No. 269 of 1997 before the District Judge, Ahmednagar, at the instance of some of the defendants. In Regular Civil Appeal No. 269 of 1997 smt. Shiubai Madhav Gangarde was Appellant No. 3. Said Shiubai was original defendant No. 3. Smt. Shiubai died on 22nd April, 1998 i. e. during the pendency of Regular Civil Appeal No. 269 of 1997. Regular Civil Appeal No. 269 of 1997 came to be dismissed on 22nd April, 2004. The original plaintiff/petitioner in this writ petition, filed Misc. Civil Application for review under Order XLVII, Rule 1 read with sections 151 and 152 of the Code, in the Court of learned District judge, Ahmednagar which, after hearing all the parties, came to be dismissed by the judgment and order dated 17th September, 2004. The decree passed in regular Civil Suit No. 22 of 1981 was put into execution. The District Collector, ahmednagar, by the letter dated 26th April, 2005, addressed to the learned Civil judge, Junior Division, Karjat sought guidance. Said letter is in Execution petition No. 20 of 2002 pending before the Executing Court at Exhibit-37. The petitioner had also filed application Exhibit-17 in Regular Darkhast no. 20 of 2002. In this application, petitioner sought injunction against defendant nos. 2, 7 and 8 regarding removal of earth from land Gat No. 219 and part of land Gat No. 61 as detailed in that application. This application seems to have been filed on 17th March, 2005. Learned Civil Judge, Junior Division, Karjat passed common order below Exhibit-17 as well as below Exhibit-1 in Regular darkhast No. 20 of 2002 since he had also received letter from the District collector, Ahmednagar seeking guidance regarding execution of the decree passed in Regular Civil Suit No. 22 of 1981. Learned Civil Judge, Junior division directed the District Collector or Gazetted Officer to complete the partition proceeding in the light of decree and as per section 54 of the Code and section 85 of The Maharashtra Land Revenue Code, 1966 as soon as possible. It was also informed that no guidelines can be issued from the Court in respect of partition as he is empowered to deal with situation according to law. Application exhibit-17 came to be allowed and contesting Judgment Debtor Nos. 1, 2, 7 and 8 are restrained from carrying out any type of activity causing damages to the suit property under partition till the partition proceeding is finalised. The petitioner is partly aggrieved by this order, more specifically item No. 2 of the operative part of the order.
On behalf of the respondents, affidavit in reply is filed. It is sworn in by mr. Popat Gangarde. Death of defendant No. 3 Shiubai during the pendency of regular Civil Appeal No. 269 of 1997, on 22nd April, 1998, is stated. Filing of the Day Application No. 5 of 2004, by the petitioner and rejection thereof is also averred. Copy of this application is annexed with the reply affidavit. Reference is made to the judgment of the Apex Court reported in AIR 1983 SC 124 and prayer is made for rejection of the petition.
It is not in dispute that the petitioner had filed an application on 2nd december, 2004 in a partition proceeding pending before the...
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