2011(3) ALL MR 363
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
B.P. DHARMADHIKARI, J.
Sau. Vijaya Narendra Kene @ Vijaya Gangadhar Bhope(Dead Through Lrs.) Vs.Smt. Kamalabai Gangadhar Bhope(Dead Through Lrs.)
Writ Petition No.1800 of 2010
14th February, 2011
Petitioner Counsel: Shri. A. S. BAJAJ
Respondent Counsel: Shri. I. S. THORAT,Shri. VINOD PATIL
Civil P.C. (1908), S.47 - Execution proceedings - Order without jurisdiction - Order liable to be quashed and set aside. (Para 9)
3. Short question which arises for determination is, whether in execution proceedings, after death of one of the judgment debtors, succession to her property amongst her legal heirs can also be gone into and a decree for partition, as passed qua her share in joint family property, can also be executed by working out shares interse of her legal representatives for separate possession thereof.
4. According to Advocate Mr. Bajaj this exercise must be undertaken in a separate suit as it is not covered under section 47, C.P. Code. In order to point out prejudice caused to petitioner/judgment debtor, he states that the petitioner is also one of the legal heirs of said deceased judgment debtor and as per understanding with her other legal heirs, as he arranged for and prosecuted the legal challenge, the other heirs are not entitled to claim any share in share of deceased judgment debtor. He, however, adds that scrutiny of correctness or otherwise of this contention is also not open in execution proceedings as pending.
7. It is not in dispute that judgment and decree sought to be executed is for partition and the judgment debtor No.1 Kamalabai has expired in 2002 during pendency of the said execution. In civil suit, which led to that execution, her share has been worked out to 1/10th. On account of her death, the present Respondent No.3 filed an application, working out his share proportionately in that 1/10th share of judgment debtor No.1 and claimed its separation in very same proceedings. It was opposed and by impugned order dated 19th November, 2010 Civil Judge, Senior Division, Sangamner has granted that request of Respondent No.3.
8. It is apparent that judgment and decree in Special Civil Suit No.4 of 1991 only is relevant and is being executed in Special Darkhast No.3 of 1996. 1/10th share of deceased J.D. No.1, therefore, can be separated and handed over to her or then to all her legal heirs jointly. The effort of Respondent No.3 to have it further partitioned i.e. subdivision of 1/10th share of J.D. No.1 in very same execution proceedings cannot form subject matter of Special Darkhast No.3 of 1996. The Respondent No.3 may be right in stating that deceased J.D. No.1 has left petitioner, Respondent Nos.2, 2-A, 2-B and Respondent Nos.3 and 4 as her legal heirs. Mathematically shares worked out by him may also be correct. However, then partition inter-se between heirs of deceased J.D. No.1 is not the subject matter of execution.
9. Even otherwise, it is apparent that there is some dispute between the parties in relation to their respective shares after death of deceased J.D. No.1. As parties have not agreed to their shares and there is dispute, said dispute does not form subject matter of execution in so far as execution of decree passed in Special Civil Suit No.4 of 1991 is concerned. It does not spring from that decree. Had parties agreed amicably, the partition may have been worked out but when there is dispute, it is clear that said dispute needs to be resolved in accordance with law i.e. by filing a suit. Impugned order, as passed, is, therefore, unsustainable and without jurisdiction and the same is accordingly quashed and set aside. Writ petition is allowed. No costs.
10. At the request of Advocate Mr. Thorat, proceedings in Special Darkhast No.3 of 1996 are expedited and it be decided within a period of one year from the date of communication of this order to the executing Court.