Case Note & Summary
The appellant, Shri Devidas Painguincar, appealed against an order dated 6/01/2003 passed by the Comarca Judge of Salcete and Quepem at Margao in Inventory Proceeding No. 12/99/C. The lower court had allowed a third party application (Civil Miscellaneous Application No. 16 of 2000) filed by the respondent, Smt. Rekha Babu Naik, alleging fraud by the inventariante regarding ownership of the property. The lower court directed an inquiry into the ownership dispute. The appellant challenged this order, arguing that the inventory proceeding had already been decided and attained finality. The High Court, after hearing the appellant's counsel and noting the absence of the respondent despite service, examined Articles 1427 and 1436 of the Family Laws. The court agreed with the appellant's submission that the third party's remedy lies in independent proceedings, not by reopening a decided inventory proceeding. Consequently, the High Court set aside the impugned order and dismissed the third party's application, allowing the appeal with no order as to costs.
Headnote
A) Civil Procedure - Inventory Proceedings - Finality - Third Party Application - The court held that once an inventory proceeding has attained finality, a third party cannot seek to reopen it by filing a civil miscellaneous application alleging fraud. The remedy lies in independent proceedings. (Paras 2-5)
B) Family Law - Inventory Proceedings - Articles 1427 and 1436 - The provisions of Articles 1427 and 1436 of the Family Laws indicate that the judgment and decree in inventory proceedings are final, and third parties must pursue separate remedies. (Para 5)
Issue of Consideration
Whether a third party application alleging fraud can be entertained in a decided inventory proceeding to reopen the same.
Final Decision
The appeal is allowed. The impugned order passed by the lower court is set aside and Civil Miscellaneous Application No. 16 of 2000 filed in Inventory Proceeding No. 12 of 1999 is dismissed. No order as to costs.
Law Points
- Finality of inventory proceedings
- Third party remedy in independent proceedings
- Articles 1427 and 1436 of Family Laws
Case Details
2006 LawText (BOM) (11) 108
Appeal from Order No. 29 of 2003
Shri V.R. Tamba for Appellant, Shri M.P. Almeida for Respondent (absent)
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Nature of Litigation
Appeal against order directing inquiry in decided inventory proceeding.
Remedy Sought
Appellant sought setting aside of the order directing inquiry and dismissal of third party application.
Filing Reason
The lower court allowed a third party application alleging fraud and directed inquiry in a decided inventory proceeding.
Previous Decisions
The Comarca Judge of Salcete and Quepem at Margao passed an order dated 6/01/2003 in Inventory Proceeding No. 12/99/C directing inquiry.
Issues
Whether a third party application alleging fraud can be entertained in a decided inventory proceeding to reopen the same.
Submissions/Arguments
Appellant argued that under Articles 1427 and 1436 of the Family Laws, the inventory proceeding has attained finality and the third party's remedy lies in independent proceedings, not by way of civil miscellaneous application in the decided inventory proceeding.
Ratio Decidendi
Once an inventory proceeding has attained finality, a third party cannot seek to reopen it by filing a civil miscellaneous application alleging fraud. The remedy lies in independent proceedings.
Judgment Excerpts
the judgment and decree passed in the Inventory Proceeding has attained finality and the remedy of the third party lies elsewhere in independent proceedings and not by way of Civil Miscellaneous Application in the decided Inventory Proceeding.
the application of third party in the decided Inventory Proceeding cannot be entertained, so as to re open Inventory Proceeding, in this manner.
Procedural History
The Comarca Judge of Salcete and Quepem at Margao passed an order dated 6/01/2003 in Inventory Proceeding No. 12/99/C directing inquiry on a third party application (Civil Miscellaneous Application No. 16 of 2000). The appellant filed Appeal from Order No. 29 of 2003 before the High Court of Bombay at Goa challenging that order.
Acts & Sections
- Family Laws (Portuguese Civil Code applicable in Goa): Articles 1427, 1436
