Case Note & Summary
The Bombay High Court entertained a writ petition arising from the order dated 28.7.1986 of the Civil Judge, Junior Division, Islampur, rejecting an application at Exhibit-6 filed by the petitioners under Section 47 of the Code of Civil Procedure, 1908. The application was made in Regular Darkhast No.193 of 1968, which was the execution proceeding stemming from a judgment and decree passed on 12.10.1968 in Regular Civil Suit No.25 of 1968. The original plaintiff, Ramchandra Vishnu Kulkarni, had filed the suit for joint possession of several properties including three agricultural lands bearing Gat No.2238 (formerly R.S. Nos.307/1, 307/2, 307/3) at village Kasegaon, Taluka Walve, District Sangli. The petitioners, being the original defendants in the suit, were in exclusive possession of these lands. The suit was decreed ex-parte against them; some other defendants appealed and the decree was ultimately confirmed by the High Court on 21.7.1980. The execution proceedings had remained stayed pending those appeals. The petitioners claimed that their father, Pandu Gavade, had been a tenant of all three lands since before 1.4.1957 and that under the Bombay Tenancy and Agricultural Lands Act, 1948, proceedings under Section 32G were initiated and concluded, with purchase price fixed and purchase certificates issued under Section 32M: for R.S. No.307/1 on 19.8.1967, and for R.S. Nos.307/2 and 307/3 on 25.7.1978. They further asserted that they had been illegally dispossessed from two lands and had obtained restoration of possession under Section 29 of the Act in 1964, with actual delivery on 14.8.1973. Consequently, the petitioners contended that they had become owners by operation of law, that the decree for joint possession was without jurisdiction and inexecutable, and that any execution would violate the provisions of the Tenancy Act, particularly Sections 43, 83A, 84 and 84C. Before the executing court, their application under Section 47 CPC was dismissed, leading to the present writ petition. The respondents’ claim, on the other hand, traced back to a family settlement and a decree in Civil Suit No.627 of 1918, which purportedly reverted the properties to the plaintiff’s branch after life interests. The High Court identified two principal questions: first, whether the decree had become inexecutable due to the purchase certificates, and second, whether the writ petition abated because it was filed against a dead person without impleading all legal representatives. Counsel for the petitioners relied heavily on the Supreme Court decision in Saraswatibai Trimbak Gaikwad v. Damodhar D. Motiwale, (2002) 4 SCC 481, and argued that the decree was a nullity insofar as it affected tenancy lands. The judgment text provided ends abruptly during the recording of submissions, and no final decision or reasoning is contained therein. Accordingly, the outcome of the writ petition, the court’s analysis, and any operative directions remain unknown.
Issue of Consideration
Whether in view of certificate of purchase issued under section 32M of the Bombay Tenancy and Agricultural Lands Act, 1948, the decree has become inexecutable and the execution proceedings ought to be dropped; Whether the writ petition abates due to being filed against a dead person without bringing all legal representatives on record.
Law Points
- Decree may become inexecutable if judgment-debtor has become owner by operation of law under tenancy legislation
- Purchase certificate under Section 32M of Bombay Tenancy and Agricultural Lands Act
- 1948 confers ownership
- Section 47 CPC allows objection to executability
- Abatement of petition if legal representatives of deceased not brought on record
