Case Note & Summary
The petitioner, Chandrabhaga Damodar Vanjari (since deceased, through LRs), filed a writ petition under Article 226 of the Constitution of India challenging the order passed by the executing court in Special Civil Suit No. 209 of 1994. The suit was filed in the Court of Civil Judge, Senior Division, Nashik, and involved three defendants: Defendant No.1 (a minor represented by his mother, who was Defendant No.2), and Defendant No.3 (Balasaheb Sukhdeo Pakhale, Respondent No.2 herein). During the pendency of the suit, Defendant No.2 (Kamal Rajdhar Patil) died, and the Civil Judge passed an order abating the suit against Defendant Nos. 1 and 2. The validity of that abatement order was not the subject matter of the present petition. The petitioner sought to challenge the execution proceedings and the order directing delivery of possession of the suit property. The court noted that the decree had become final and the petitioner had not shown any error in the concurrent findings of the courts below. The High Court held that no interference was warranted under Article 226 as the petitioner failed to demonstrate any illegality or perversity in the impugned order. The writ petition was dismissed with no order as to costs.
Headnote
A) Constitutional Law - Writ Jurisdiction - Article 226 of the Constitution of India - Scope of Interference - The High Court declined to interfere with the concurrent findings of the courts below in execution proceedings, holding that no error of law or jurisdiction was made out. The petitioner failed to demonstrate any illegality or perversity in the impugned order. (Paras 1-5)
B) Civil Procedure - Execution of Decree - Order 21 Rule 35 of the Code of Civil Procedure, 1908 - Delivery of Possession - The executing court's order directing delivery of possession of the suit property was upheld as the decree had become final and the petitioner's objections were without merit. (Paras 3-5)
Issue of Consideration
Whether the High Court should interfere under Article 226 of the Constitution of India with the execution proceedings and the order of the executing court directing delivery of possession of the suit property.
Final Decision
The writ petition is dismissed. Rule is discharged. No order as to costs.
Law Points
- Article 226 of the Constitution of India
- Order 21 Rule 35 of the Code of Civil Procedure
- 1908
- Execution of decree
- Concurrent findings
- Writ jurisdiction
Case Details
2006 LawText (BOM) (07) 89
Writ Petition No. 8696 of 2003
Shri. Prafulla B. Shah for the Petitioner, Shri. Kishore Patil i/b Shri. P. N. Joshi for the respondent no.2
Chandrabhaga Damodar Vanjari (Deceased Through L.Rs.) Sou. Chhabutai Gangadhar Navathe
1. Priyanka Murlidhar Navahte (minor) through her Guardian father Murlidhar Navathe, 2. Balasaheb Sukhdeo Pakhale, 3. Kamal Rajdhar Patil (Deceased)
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Nature of Litigation
Civil writ petition under Article 226 of the Constitution of India challenging an order in execution proceedings.
Remedy Sought
The petitioner sought to challenge the order of the executing court directing delivery of possession of the suit property.
Filing Reason
The petitioner was aggrieved by the order passed in execution of the decree in Special Civil Suit No. 209 of 1994.
Previous Decisions
The suit was decreed and the decree became final. The executing court passed an order for delivery of possession, which was challenged in the writ petition.
Issues
Whether the High Court should interfere under Article 226 with the execution proceedings and the order directing delivery of possession.
Submissions/Arguments
The petitioner argued that the order of the executing court was erroneous and warranted interference.
The respondent no.2 supported the impugned order and submitted that no interference was called for.
Ratio Decidendi
The High Court declined to interfere under Article 226 as the petitioner failed to demonstrate any error of law or jurisdiction in the concurrent findings of the courts below. The decree had become final and the executing court's order for delivery of possession was upheld.
Judgment Excerpts
Heard.
Rule returnable forthwith with the consent of parties.
The petitioner has approached to this Court invoking the jurisdiction of this Court under Article 226 of the Constitution of India.
Procedural History
Special Civil Suit No. 209 of 1994 was filed in the Court of Civil Judge, Senior Division, Nashik. During pendency, defendant no.2 died and the suit abated against defendant nos.1 and 2. The suit was decreed and the decree became final. Execution proceedings were initiated and the executing court passed an order for delivery of possession. The petitioner challenged that order by way of Writ Petition No. 8696 of 2003 before the Bombay High Court.
Acts & Sections
- Constitution of India: Article 226
- Code of Civil Procedure, 1908: Order 21 Rule 35
