Case Note & Summary
The writ petition under Article 227 of the Constitution of India was filed by Rupa Jitendra Deshprabhu challenging the order dated 24.04.2024 passed by the Civil Judge Senior Division, Panaji, which rejected her application Exhibit D-19 filed under Section 47 read with Section 151 and Order XXI Rules 58, 97, 98, 100, 101 and 103 of the Code of Civil Procedure, 1908, in Regular Execution Proceeding No.21/2018. The execution proceeding arose from a decree of eviction and mesne profits passed on 23.06.2009 in Regular Civil Suit No.440/2000/C (old SCS No.82/1990/A) against Devendra and Jitendra (husband of the petitioner) in respect of a suit property. The decree was confirmed by the District Court, High Court and Supreme Court, with the special leave petition dismissed on 15.12.2017. The petitioner, claiming to be the legally wedded wife of judgment debtor Jitendra under the Regime of Communion of Assets, asserted a 50% share and possessory rights in the suit property under Article 1108 of the Portuguese Civil Code. She had earlier filed an application for impleadment (Exhibit D-9) on 30.08.2019, which was dismissed on 11.04.2022, and that dismissal was upheld by the High Court in Writ Petition No.476 of 2024 on 10.07.2024. While that writ petition was pending, she filed the second application Exhibit D-19 on 06.10.2023 raising detailed objections to execution under Section 47 read with Order XXI Rules 97-105 CPC, contending that she was not arrayed as a defendant in the suit, that after her husband's death on 21.04.2020 she was in exclusive independent possession of the suit property, and that her rights required adjudication. The Executing Court dismissed Exhibit D-19 on 24.04.2024 without holding an inquiry. The petitioner challenged the dismissal of the earlier impleadment application before the Supreme Court in SLP(C) No.19083/2024, which was dismissed on 27.08.2024 with the observation in paragraph 3 that the remedy under Section 47 of the Code should have been taken to its logical conclusion on merits instead of dismissing the application on the ground that an intervention application was pending. In the present petition, the petitioner contended that this observation impliedly set aside the order dated 24.04.2024 and required the Executing Court to decide Exhibit D-19 on merits after an inquiry. The respondents argued that the dismissal of the SLP made all prior orders final, that Exhibit D-9 was dismissed on merits, and that the Supreme Court's observations were not binding as they were not the ratio of the decision. The High Court framed the point for determination as whether the impugned order dated 24.04.2024 called for interference in light of the Supreme Court's observations. The provided judgment text ends before the final decision of the High Court on this point, and therefore the final order is not available from the extracted text.
Headnote
A) Civil Procedure - Execution Proceedings - Objections by Third Party - Code of Civil Procedure, 1908, Section 47 read with Order XXI Rules 97,98,100,101,103 - The petitioner, claiming as wife of judgment debtor under Communion of Assets, filed application Exhibit D-19 seeking adjudication of objections to execution on grounds of non-joinder and independent possession after husband's death. The Executing Court dismissed the application without inquiry, and Supreme Court observed remedy under Section 47 should be taken to logical conclusion on merits rather than dismissed due to pending intervention application. (Paras 2-5)
B) Constitutional Law - Supervisory Jurisdiction - Constitution of India, Article 227 - Scope of High Court's power to examine orders of executing court - The petition invoked Article 227 to challenge order dated 24.04.2024 rejecting objections. The High Court was required to determine whether impugned order suffered jurisdictional error in light of Supreme Court observations. (Paras 1-2,7)
C) Precedent - Binding Effect of Observations in Dismissed Special Leave Petition - Supreme Court order dated 27.08.2024 in SLP(C) No.19083/2024 - Observations in para 3 that remedy under Section 47 CPC should be taken to its logical conclusion on merits were argued by petitioner to impliedly set aside impugned order, while respondents contended such observations were not ratio and could not bind as SLP was dismissed without notice. (Paras 3-6)
D) Civil Procedure - Execution Proceedings - Earlier Dismissal of Impleadment Application - Code of Civil Procedure, 1908, Section 47 - The earlier application Exhibit D-9 for impleadment was dismissed on 11.04.2022 and upheld by High Court on 10.07.2024; respondents contended this dismissal on merits barred subsequent objections, while petitioner argued second application raised distinct objections under Order XXI Rules 97-105. (Paras 3,6,11)
Issue of Consideration
Whether, in light of observations in para 3 of Supreme Court order dated 27.08.2024 dismissing SLP, the impugned order dated 24.04.2024 rejecting application under Section 47 read with Order XXI Rules 58,97-103 CPC calls for interference; whether Executing Court must adjudicate objections on merits.
Law Points
- Article 227 supervisory jurisdiction
- Section 47 CPC objections
- Order XXI Rules 97-105 CPC inquiry
- binding nature of Supreme Court observations in dismissed SLP
- Communion of Assets under Article 1108 Portuguese Civil Code
- res judicata/constructive res judicata in execution proceedings
Case Details
2025 LawText (BOM) (07) 149
WRIT PETITION NO.270 OF 2025
Ms. Arundhati Katju, Senior Advocate with Mr. Gaurish Agni, Mr. Ankur Kumar, Ms. Ritika Meena, Mr. Siddharth Acharya, Ms. Ankeeta Appanna, Mr. Kishan Kavlekar, Mr. Tanvir Khatib, Mr. S.D. Lotlikar, Senior Advocate with Mr. Prasheen Lotlikar, Mr. Bhavesh Lotlikar, Mr. Ronak Naik, Mr. P. Hegde, Mr. Sarvesh Sawant, Ms. Priyadarshini Volvoicar
Dr. Vasudev Rajendra Deshprabhu, Nayantara Rajendra Deshprabhu, Miss Mzunelini Jitendra Deshprabhu, Master Yuvraj Jitendra Deshprabhu, Mrs. Aparna Rajendra Deshprabhu, Shri Devendra Raghuraj Deshprabhu, Shri Jitendra Raghuraj Deshprabhu (deceased) through Legal heirs
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Nature of Litigation
Writ petition under Article 227 of Constitution of India challenging an order of Executing Court rejecting objections under Section 47 read with Order XXI Rules 58,97-103 CPC in execution of an eviction decree.
Remedy Sought
Petitioner sought to have the impugned order dated 24.04.2024 set aside and a direction to the Executing Court to adjudicate her objections (Exhibit D-19) on merits after an inquiry under Order XXI Rule 97 to 105 read with Section 47 CPC.
Filing Reason
Petitioner, as wife of deceased judgment debtor, claimed entitlement to 50% share and possessory rights in the suit property under the Regime of Communion of Assets; she was not arrayed as a defendant in the original suit, and her earlier impleadment application was dismissed; she filed second application raising detailed objections to execution.
Previous Decisions
Regular Civil Suit No.440/2000/C decreed eviction on 23.06.2009; RCA No.75/2009 dismissed on 05.03.2013; Second Appeal No.28/2015 dismissed on 21.09.2017; SLP 33674/2017 dismissed on 15.12.2017; Execution Proceeding No.21/2018 filed on 18.08.2018; Petitioner's application Exhibit D-9 dismissed on 11.04.2022; High Court in WP 476/2024 dismissed on 10.07.2024; SLP(C) No.19083/2024 dismissed on 27.08.2024 with observations; impugned order on Exhibit D-19 dated 24.04.2024.
Issues
Whether the observations in para 3 of Supreme Court order dated 27.08.2024 dismissing SLP(C) No.19083/2024 had the effect of setting aside the impugned order dated 24.04.2024 passed on Exhibit D-19.
Whether the Executing Court was required to adjudicate the petitioner's objections under Section 47 read with Order XXI Rules 97-105 CPC on merits after holding an inquiry, rather than dismissing them on the ground that an intervention application was pending.
Whether the earlier dismissal of the petitioner's impleadment application Exhibit D-9 on 11.04.2022 operated as a bar to the subsequent objections raised in Exhibit D-19.
Whether observations made by the Supreme Court in a dismissed special leave petition constitute binding precedent or ratio decidendi.
Submissions/Arguments
Petitioner argued that the Supreme Court's observation in para 3 of order dated 27.08.2024 impliedly set aside the impugned order dated 24.04.2024 and required the Executing Court to decide Exhibit D-19 on merits after an inquiry under Order XXI Rules 97-105 read with Section 47 CPC.
Petitioner contended that the second application Exhibit D-19 raised detailed objections distinct from the earlier impleadment application, including non-joinder as a defendant and exclusive independent possession after her husband's death on 21.04.2020.
Respondents argued that the dismissal of the SLP made all prior orders final, including the order dated 24.04.2024 on Exhibit D-19, and that the Supreme Court's observations were not binding as they were not the ratio of the decision.
Respondents submitted that the earlier application Exhibit D-9 was dismissed on merits after considering the petitioner's rights under Article 1108 of the Civil Code, 1867, and that Exhibit D-19 was filed only to delay execution and continue illegal possession.
Respondents relied on Vasudha Vasand Dabholkar v. Sudesh Govekar, Dadu Dayalu Mahasabha v. Mahant Ram Niwas, and Bool Chand v. Rabia to argue that observations in a judgment should not be interpreted as a statute and that a judgment's words must be understood in context.
Judgment Excerpts
3. We are of the view that the remedy pursued by the petitioner under Section 47 of the Code should have been taken to its logical conclusion on merits instead of dismissing the application on the ground that an intervention application was also pending.
The point that falls for determination in this petition is whether, in the facts of the case, and in the light of the observations in para 3 of the order dated 27.08.2024 of the Hon’ble Supreme Court, the impugned order dated 24.04.2024 calls for any interference.
Procedural History
Regular Civil Suit No.440/2000/C was filed by the respondents (original plaintiffs) for eviction and mesne profits against Devendra and Jitendra. The suit was decreed on 23.06.2009, directing eviction of the defendants. The decree was challenged in RCA No.75/2009, dismissed on 05.03.2013. Second Appeal No.28/2015 was dismissed on 21.09.2017, and Special Leave Appeal 33674/2017 was dismissed by the Supreme Court on 15.12.2017, making the eviction decree final. The decree holders filed Execution Proceeding No.21/2018 on 18.08.2018. The petitioner, wife of judgment debtor Jitendra, filed an application for impleadment (Exhibit D-9) on 30.08.2019 under Section 47 CPC, claiming rights under the Regime of Communion of Assets. Jitendra died on 21.04.2020 while the application was pending. The Executing Court dismissed Exhibit D-9 on 11.04.2022 on the ground that the suit property was not an asset of Jitendra's estate. The petitioner then filed Writ Petition No.476 of 2024 in the High Court challenging that dismissal. While that writ petition was pending, she filed a second application Exhibit D-19 on 06.10.2023 under Section 47 read with Order XXI Rules 97-105 CPC, raising detailed objections to execution. The Executing Court passed the impugned order on 24.04.2024 dismissing Exhibit D-19. The High Court dismissed Writ Petition No.476 of 2024 on 10.07.2024, taking note of the order dated 24.04.2024. The petitioner challenged the High Court's order dated 10.07.2024 before the Supreme Court in SLP(C) No.19083/2024, which was dismissed on 27.08.2024 with observations in para 3 that the remedy under Section 47 CPC should be taken to its logical conclusion on merits. The present writ petition under Article 227 was filed challenging the order dated 24.04.2024.
Acts & Sections
- Constitution of India: Article 227
- Code of Civil Procedure, 1908: Section 47, Section 151, Order XXI Rules 58, 97, 98, 100, 101, 103
- Portuguese Civil Code, 1867: Article 529, Article 1108, Article 1117, Article 1119
