2025:BHC-NAG:1534

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

WRIT PETITION NO. 3808 OF 2021

Narmada Apartment Housing

Society, through Shri Vinodsingh
s/o Nareshsingh Thakur,
aged about 52 yrs, Occ. Agriculturist,
r/o.Gittikhadan Nagpur. .....PETITIONER

...V E R S U S...

1. India Financial Association of

Seventh Day Adventist, a company
registered under the Companies Act,
through its authorised officer
Shri Sahebrao Anand Khandagle,
aged 55 yrs, occ. Principal,
Seventh-day Adventist High School,
Mount Road, near Upavan Lawn,
Sadar, Nagpur 440 001

2. Smt. Sagrabai Daulatrao Fulzele,

aged about 51 yrs, Occ. Agriculturist,
r/o. Gorewada, Near Budha Mandir, Nagpur

3. Pandurang Mahadeo Mendhe

(since deceased through Lrs

3a) Sheeladevi wd/o Pandurang

Mendhe, aged 52 yrs, Occ. Not known

3b) Vinod s/o Pandurang Mendhe,

aged 36 yrs,

3c) Josna w/o Sudhir Rangari,

aged about 33 yrs, Occ Not known

3d) Reena Basantlal Lokhande,

aged about 30 yrs, Occ. Not known
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3e) Kamlesh s/o Pandurang Mendhe,

aged about 28 yrs, Occ. Not known
All 3(a) to 3(e) r/o. gorewada Basti,
near Budha Mandir, Nagpur

4. Arun Mahadeo Mendhe

(since deceased through Lrs

4a) Smt. Kavita wd/o Arun Mendhe,

aged about 51 yrs, Occ. Not known

4b) Rakesh s/o Arun Mendhe,

aged about 28 yrs, Occ. Not known

4c) Rikesh Arun Mendhe,

aged about 26 yrs, Occ. Not known

4d) Kiran d/o Arun Mendhe,

aged about 24 yrs, Occ. Not known

4e) Akash s/o Arun Mendhe,

aged about 22 yrs, Occ. Not known

4f) Karishma d/o Arun Mendhe,

aged about 20 yrs, Occ. Not known

All r/o. of Gorewada, near Budha Mandir,

Nagpur

5. Kamlabai w/o Hiraman Dongre,

aged about 48 yrs, Occ. Agriculturist,
r/o. of Gorewada, near Budha Mandir,
Nagpur .....RESPONDENTS
----------------------------------------------------------------------------------------------
Mr. Masood Sharif, Advocate for Petitioner.
Mr. D.S. Lambat, Advocate for respondent Nos. 4(a) to 4(f).
---------------------------------------------------------------------------------------
CORAM:- ABHAY J. MANTRI, J.
DATE : 10.01.2025
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ORAL JUDGMENT :

Rule. Rule made returnable forthwith. Heard finally, with

the consent of the learned Counsel for the parties.

2. The petitioner being aggrieved by the order dated

31.01.2020, passed by learned Joint Civil Judge Junior Division,

Nagpur, below Exhibit 47, in Regular Darkhast No. 186/2012

whereby allowed the application of the objector/respondent No.1 for

recalling judgment and decree dated 24.06.2008, passed in Special

Civil Suit No. 875/2003 and permitted respondent No.1 to lead

evidence in support of its objection.

3. Factual Matrix :

a) The petitioner claims that based on the sale deed and

agreement to sell dated 16.02.1991, executed by respondent No. 2

Sagrabai and her sons, the society is in possession of the said

property. On 25.11.2002, the petitioner filed Spl. Civil Suit (SCS)

No. 875/ 2002 against original defendant Nos. 2 to 4, i.e.

respondent Nos. 2 to 5, for Specific Performance of Contract and

Injunction. The suit was decreed on 24.06.2008, and the defendants

were directed to execute the sale deed with respect to 2.06 acres of

land in favour of the plaintiffs.

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b) Thereafter, the petitioner has filed an execution

proceeding bearing Regular Darkhast (R.D.) No. 186/2012 for the

execution of the sale deed. On service of notice of execution

proceeding, on 13.07.2009, respondent No. 5, i.e. original defendant

No. 4, filed MJC No.197/2009 for quashing and setting aside the ex-

parte decree passed in the special civil suit. The said proceeding was

dismissed on 28.06.2017. It also appears that in the Special Civil

Suit, on 20.11.2002, the learned trial court directed respondent Nos.

2 to 5 to maintain the status quo in respect of the suit property till

further orders, i.e. not to deal, negotiate with the suit property till

disposal of the suit. The said order was in force till the disposal of

the suit, i.e. 2008.

c) Respondent No. 4 in MJC claims that in 2003, she

filed RCS No. 12/1997 against the legal heirs of Mr. Gondru Shende

for partition and possession, which was decreed. After obtaining the

decree, she sold her share in the suit property to Mr. Hulke by

registered sale deed dated 25.11.2004. Subsequently, on

20.06.2015, Mr. Hulke sold the same to the objector, i.e., respondent

No. 1.

d) Based on the said sale deed, respondent No. 1 filed an

objection to the execution of the decree and recalling of the

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judgment and decree in the special civil suit. The said application

came to be allowed. Being aggrieved by the same, the petitioner has

preferred this petition.

4. Heard Mr. Masood Sharif, the learned Counsel for the

petitioner and Mr. D.S. Lambat, the learned Counsel for respondent

Nos. 4(a) to 4(f). None appeared for the rest of the respondents,

though served.

5. Mr. Sharif, the learned counsel, vehemently contended

that based on the sale deed and agreement to sell of the year 1991,

the petitioner is in possession of the suit property, i.e. land

admeasuring 2.06 Acres out of Khasra No. 43/3. Based on the said

agreement, the petitioner was put into possession of the suit

property. Pursuant to the same, the petitioner carved out 114 plots

over it and sold 90 plots to the prospective purchasers. He further

drew my attention to the filing of MJC No. 197/2008 by defendant

No. 4, i.e. respondent No. 5 herein, and thereby prayed to quash and

set aside the ex-parte judgment passed in the Special Civil Suit. The

said application was filed under Order IX Rule 13 of the Civil

Procedure Code (for short-“Code”). Against the said order,

respondent No. 5 did not prefer any appeal or proceeding to

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challenge the same, and therefore, the said order attains finality. He

further canvassed that respondent No. 1 has purchased land from

one Mr. Hulke, who has purchased the same from respondent No. 5.

Respondent No. 1 is claiming its right through Kamlabai. On that

ground alone, respondent No. 5 is not entitled to raise an objection

since the learned trial court has already considered the objection

filed by Kamlabai, which has been dismissed. He further argued that

despite the status quo order, respondent No. 5 sold the said property

in favour of Mr. Hulke and violated the order passed by the Trial

Court. In the absence of any document to show how much land was

sold by respondent No. 5 to Mr. Hulke, as well as since she has

stated in her MJC application regarding the same, he submitted that

respondent No. 1 could not get any right in the suit property. Lastly,

he submitted that the property is not attached in the present case.

Therefore, the question of maintainability of an application under

Order XXI Rule 54 of the Code does not arise, nor is respondent No.

1 entitled to file proceedings under Section 47 of the Code.

Therefore, he submitted that the filing of the application by

respondent No. 1 itself is not maintainable. However, the trial Court

did not consider the facts properly and allowed the application

contrary to the provisions of the law and facts on record.

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6. To buttress his submissions, the learned Counsel has

relied upon the following judgments:

i) Breakwell Automotive Components (India) Limited Vs. P.R.

Selvam Alagappan (2017)5 SCC 371; (para 20 to 23)

ii) Rahul S. Shah Vs. Jinendra Kumar Gandhi and Ors,

(2021)6 SCC 418 (Para 24,25,42,42.8, 42.9);

iii) Doki Surya Prakash Rao Vs. Gopal Krishna Dolai, AIR 2007
ORISSA 168 (para 4,5);

iv) Abdul Aziz and Ors Vs District Judge, Rampur and another,
AIR 1994 Allahabad 167 (para 3,4);

v) TCI Finance Ltd Vs. Calcutta Medical Centre Ltd and Anr
(2005)8 SCC 41, para 7,10,11)

Thus, he submitted that the learned trial Court erred in

allowing the application and permitting respondent No. 1 to lead the

evidence. In fact, the application itself was not tenable, and

therefore, he urged for allowing the petition.

7. Mr. Lambat, the learned Counsel for respondent Nos. 4

(a) to 4(f), supported the order passed by the trial Court and

submitted that the learned trial Court, after considering the facts of

the case, passed the order which is just and proper, requires no

interference at the hands of this Court.

8. I have appreciated the rival contentions of the parties,

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perused the case record and the citations relied upon by learned

Counsel for the petitioner.

9. At the outset, it reveals that based on the agreement to

sell dated 16.02.1991, the petitioner is claiming its possessory rights

over the suit property. However, the original owner has not executed

the sale deed in its favour. Therefore, it has filed suit for specific

performance of contract and injunction. During the pendency of the

suit, on 20.11.2002, the trial Court passed a status quo order in its

favour and directed respondents Nos. 2 to 4 not to deal with the suit

property nor create any third-party interest till further order. The

said order was in force till the disposal of the suit, i.e. till

24.06.2008. Based on the decree, the petitioner has filed execution

proceedings, during the pendency of which respondent No. 4 has

raised an objection and filed MJC No. 197/2009 and thereby prayed

for quashing and setting aside the ex-parte order passed in the

Special Civil Suit. On 28.06.2017, the application was rejected.

However, nothing has been brought on record to show that said

order was challenged by respondent No. 5 before the competent

authority. Thus, it seems that the said order attains finality.

10. It also appears from the record that despite the order of
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status quo being in force from 28.11.2002, on 25.11.2004,

respondent No. 5 executed the sale deed in respect of the part of the

suit property; however, none of the parties have brought the sale

deed on record to ascertain what exactly was the content of the sale

deed. In MJC, respondent No. 5 has not stated how much land was

sold to Mr. Hulke but vaguely contended that the land which came

to her share was sold by her to Mr. Hulke, but the judgment and

decree in Regular Civil Suit No. 1272/03 are not brought on record.

11. It also appears that after the disposal of MJC, respondent

No. 5 has filed an application under Section 151 of the Code for

recalling the judgment and decree passed in the Special Civil Suit,

which was rejected vide order dated 30.12.2019. Against the said

order, respondent No. 5 has not preferred any proceedings to

challenge the same. Similarly, respondent No. 1, on 12.03.2018,

moved an application under Order XXI Rule 58 to recall the

judgment and decree passed in the special civil suit, and the

petitioner resisted the said application. However, without

considering the petitioner's objection and settled position of law, the

learned Trial Court allowed the said application.

12. It is pertinent to note that respondent No. 1 is claiming its

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right through respondent No. 5, who had already filed an

application for setting aside the ex-parte decree, which was rejected.

Likewise, her application to recall judgment and order in the

execution proceeding under Section 151 of CPC was rejected.

Therefore, as per the settled position of law, respondent No. 1

cannot raise the same ground again to recall the judgment and

decree.

Similarly, in the execution proceeding, the question of

recalling the judgment cannot be dealt with as it is a settled legal

position that the Court cannot go beyond the decree between the

parties or their representatives. Therefore, in the execution

proceeding, such judgment and decree cannot be recalled. Suppose

respondent No. 5, respondent No. 1 or any other respondents are

aggrieved by such judgment and decree; in that case, there is the

remedy to challenge the same before the appellate Court under

Section 96 of the Code and not in the execution proceedings.

13. Respondent No.1 moved an application under Order XXI

Rule 58 of the Code, and therefore, I would like to reproduce

provisions in Order 21 Rule 58 as under:

58. Adjudication of claims to, or objections to

attachment, of property.-
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(1) Where any claim is preferred to, or any objection is

made to the attachment of, any property attached in
execution of a decree on the ground that such property is
not liable to such attachment, the Court shall proceed to
adjudicate upon the claim or objection in accordance with
the provisions herein contained:
Provided that no such claim or objection shall be
entertained-
(a) where, before the claim is preferred or
objection is made, the property attached has already been
sold or
(b) where the Court considers that the claim
or objection was designedly or unnecessarily delayed.
(2) All questions (including questions relating to right,
title or interest in the property attached) arising between
the parties to a proceeding or their representatives under
this rule and relevant to the adjudication of the claim or
objection shall be determined by the Court dealing with
the claim or objection and not by a separate suit.
(3) Upon the determination of the questions referred to
in sub-rule (2), the Court shall, in accordance with such
determination,-
(a) allow the claim or objection and release
the property from attachment either wholly or to such
extent as it thinks fit; or
(b) disallow the claim or objection; or
(c) continue the attachment subject to any
mortgage, charge or other interest in favour of any
person; or
(d) pass such order as in the circumstances of
the case it deems fit.
(4) Where any claim or objection has been adjudicated
upon under this rule, the order made thereon shall have
the same force and be subject to the same conditions as to
appeal or otherwise as if it were a decree.
(5) Where a claim or an objection is preferred and the
Court, under the proviso to sub-rule (1), refuses to
entertain it, the party against whom such order is made
may institute a suit to establish the right which he claims
to the property in dispute; but, subject to the result of
such suit, if any, an order so refusing to entertain the
claims or objection shall be conclusive.
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A bare perusal of Order XXI Rule 58 reveals that any

person aggrieved by an attachment order can file an objection to

such attachment, and after filing an objection, the Court has to

adjudicate the same; however, in the case in hand, the suit property

was not attached in execution proceeding, nor respondent No. 1

averred about the same. On the contrary, it appears that the

petitioner is claiming that it is in possession of the suit property.

Therefore, the suit was filed only for the specific performance of

executing the sale deed in its favour, and thus, the question of

attachment of the property does not arise. Therefore, in my view,

filing an application under Order XXI Rule 58 itself is not

maintainable. However, the learned Trial Court has not considered

the same in its proper perspective and erred in allowing the

application.

14. The learned trial court has also not considered the fact

that respondent No. 1 is claiming his title through respondent No. 5,

who has also moved an application under Order IX Rule 13 for

setting aside ex-parte decree as well as subsequently filed an

application under Section 151 of the Code to recall the judgment

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and decree passed in a Special Civil Suit and therefore, respondent

No.1 being the representative of respondent No. 5, is not entitled to

claim any relief independently. On that count, the application was

also not tenable. However, without considering the said fact, the

learned Trial Court has erred in allowing the application and

permitting the objection petitioner to lead evidence on the ground

that the decree was passed in 2008, and the sale deed was executed

before that in the year 2004. However, the learned Trial Court has

not considered the fact that during the pendency of the suit, by

order dated 28.11.2002, the Trial Court has granted status quo for

not creating any third-party interest over the disputed/suit property.

Despite the said order, respondent No. 4 has executed the sale deed,

as alleged. Therefore, I do not find substance in the finding arrived

at by the learned Trial Court for allowing the application.

15. I have gone through all judgments relied upon by the

learned advocate for the petitioner in Breakwell Automotive

Components (India) Limited, Rahul S Shaha, Doki Surya Prakash Rao and

Abdul Aziz and TCI Finance Limited (supra) wherein the Hon’ble Apex

Court observed that “it is no longer res integra that an executing

Court can neither travel beyond the decree nor sit in appeal over the
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same or pass any order jeopardising the rights of the parties

thereunder. It is only in the limited cases where the decree is by a

court lacking inherent jurisdiction or is a nullity that the same is

rendered non-est and is thus unexecutable. An erroneous decree

cannot be equal to one, which is a nullity. A court executing a

decree cannot entertain any objection that the decree was incorrect

in law or on facts.

Section 47 of the Code contemplates adjudication of

limited nature of issues relating to execution, i.e. discharge or

satisfaction of the decree, but cannot go beyond the decree .

16. In the case at hand, by filing the application (Exh. 47),

the petitioner wants to recall the judgment and decree dated

24.06.2008 passed in SCS No. 875/2002, nomenclature as an

objection to the execution petition, which as per the dictum laid

down in the above mandate is not permissible as executing Court

can’t go beyond the decree or cannot deal with the rights of the

party in execution proceedings. Moreover, the petitioner is not

claiming that its property is attached in execution to raise the

objection to attachment of property. In such an eventuality, a remedy

of appeal would only be available for recalling the judgment and

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decree. So also, it is not the case of the petitioner that the court lacks

inherent jurisdiction or is a nullity that the same is rendered non-est

and is thus unexecutable so as to raise the objection in execution

proceedings. However, the learned Trial Court has not considered

the aforesaid settled position of law and erred in allowing Exhibit

No. 47. The passing of the order appears contrary to the mandate

laid down in the aforesaid judgments and facts on record. Based on

the said findings, the order cannot be sustained in the eyes of the

law, and therefore, the same is liable to be set aside. Therefore, the

observations in the aforesaid judgments are squarely applicable to

the case at hand.

To sum up the above discussion, the learned Trial Court

erred in passing the impugned order based on its findings. The order

cannot be sustained in the eyes of the law and is liable to be

quashed.

17. In view of the aforesaid background, I deem it

appropriate to allow the petition. As a result, I proceed to pass the

following order:
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i) The writ Petition is allowed in terms of prayer

clause (a).

ii) Inform the learned trial Court accordingly.

Rule is made absolute in the above terms.

(ABHAY J. MANTRI, J.)

Belkhede

Signed by: Mr. R. S. Belkhede

Designation: PA To Honourable Judge
Date: 15/02/2025 17:51:33