Writ Petition No. 6259 of 2012

29th April, 2013

Petitioner Counsel: Mr. D S Sawant , Mr. Abhijit M Adagule
Respondent Counsel: Mr. Amit B Borkar

JUDGMENT

JUDGMENT :- Rule with the consent of the learned counsel for the parties made returnable forthwith and heard.

2. The writ jurisdiction of this Court is invoked against the order dated 14/3/2012 passed by the learned Civil Judge, Junior Division, Kolhapur i.e. the Executing Court by which order the Application Exhibit 34 filed in Regular Darkhast No.66 of 2010 by the Respondent Nos.1(c) and 1(d) herein for their impleadment, came to be allowed and resultantly the Respondent Nos.1(c) and 1(d) were allowed to be impleaded in the said darkhast proceedings.

3. The facts necessary to be cited for adjudication of the above Petition can be stated thus :-

The Petitioner herein is the original owner of the suit property in question. The suit in question being Regular Civil Suit No.95 of 1985 was filed by the Petitioner for possession on the ground that the Defendant was in illegal possession. The Defendant claimed to be a tenant of the suit property as a consequence of which the Trial Court had framed the issue of tenancy and referred it to the revenue authority for adjudication. It seems that after going through the gamut of the remedies provided under the Bombay Tenancy and Agricultural Lands Act, the matter had reached this Court by way of a Writ Petition. The said Writ Petition, in view of the death of the original defendant and since his heirs were not brought on record, stood abated. The said Regular Civil Suit No.95 of 1985 thereafter came to be decreed on 10/3/1997. The said decree was put in execution by the Petitioner by filing Regular Darkhast No.332 of 1997. Since during pendency of the said darkhast proceedings the original Judgment Debtor expired, his legal heirs were brought on record. In the said darkhast proceedings a compromise was arrived at between the parties. A compromise purshis was accordingly filed on 26/2/2010. It was mentioned in the said compromise purshis that the Respondent Nos.1(c) and 1(d) herein who are the sisters of the Respondent Nos.1(a) and 1(b) herein, by way of Release Deed dated 22/2/2010 have relinquished their share in the suit property in favour of the Respondent Nos.1(a) and 1(b). Since the Respondent Nos.1(c) and 1(d) had relinquished their share, their deletion from the said darkhast proceedings was sought by the Decree Holder. On the said purshis an endorsement was made by the Advocate of the Respondent Nos.1(c) and 1(d), that the said Respondents have no objection for their deletion in view of the registered Release Deed executed by them. The said darkhast proceedings being Regular Darkhast No.332 of 1997 came to be disposed of on 26/2/2010 by accepting the said compromise purshis which was numbered at Exhibit 47. The deletion of the Respondent Nos.1(c) and 1(d) herein was also allowed.

4. It seems the Respondent Nos.1(a) and 1(b) herein failed to abide by the compromise which had been arrived at in the said darkhast proceedings. The Petitioner was therefore constrained to once again filed darkhast proceedings which were numbered as Regular Darkhast No.66 of 2010. The Respondent Nos.1(a) and 1(b) filed their reply and opposed the said darkhast proceedings on the grounds which have been mentioned in the said reply. Since in the said darkhast proceedings as filed afresh, the Respondent Nos.1(c) and 1(d) were wrongly arrayed as Respondents the Petitioner applied for their deletion which application was granted by the Executing Court by order dated 14/6/2011. The Respondent Nos.1(c) and 1(d) were accordingly deleted from the array of Respondents. It is required to be noted that the deletion was in terms of the earlier order which was passed in Regular Darkhast No.332 of 1997.

5. After the said deletion of the Respondent Nos.1(c) and 1(d) which took place on 14/6/2011, the Respondent Nos.1(c) and 1(d) filed an application under Order 1 Rule 10(2) of the Code of Civil Procedure for they being joined as parties to the darkhast proceedings. The said application was founded on the Correction Deed dated 4/11/2011 which they had executed and by which they sought to amend the Release Deed so as to exclude the property in respect of which there was a compromise decree between the parties. It was their contention in the said application that in view of the Correction Deed their share in the suit property is intact. The said Application Exhibit 34 was opposed to on behalf of the Decree Holder i.e. the Petitioner herein. The sum and substance of the Petitioner's case was that the said application could not be allowed in view of the fact that the Respondent Nos. 1(c) and 1(d) had executed the Release Deed, and accordingly their names were deleted from the earlier proceedings itself.

6. The said Application Exhibit 34 was considered by the Executing Court and the Executing Court by the impugned order has allowed the same on the ground that since the third parties are claiming to be in possession and since the Decree Holder is claiming possession of the suit property, their impleadment was necessary. The Executing Court held that the validity of the Correction Deed is not a matter in issue at the said stage. As indicated above, it is the said order dated 14/3/2013 which is impugned in the present Petition.

7. Heard the learned counsel for the parties. The learned counsel appearing on behalf of the Petitioner Shri Sawant would urge that once the Respondent Nos.1(c) and 1(d) were deleted as Judgment Debtors from the darkhast proceedings in view of the registered Release Deed executed by them in favour of the Respondent Nos.1(a) and 1(b), they could not seek their impleadment once again on the basis of the Correction Deed. The learned counsel for the Petitioner would contend that the Executing Court has failed to take into consideration that the Regular Darkhast No.66 of 2010 has been filed for execution of the compromise which had arrived at in the earlier Regular Darkhast No.332 of 1997 and therefore the Respondent Nos.1(c) and 1(d) who were deleted on the basis of the compromise, cannot now be joined as Judgment Debtors to the execution proceedings which are now related to execution of the compromise arrived at in the earlier darkhast proceedings. The learned counsel would contend that the Executing Court failed to appreciate that the Application Exhibit 34 is a malafide application and has been filed at the behest of the Respondent Nos.1(a) and 1(b) who do not want to abide by the compromise which was arrived at. The learned counsel would contend that the fact that the Correction Deed has been executed long after the Respondent Nos.1(c) and 1(d) were deleted shows the real intention and purpose of executing the Correction Deed and that too which is restricted to the suit property only.

8. Per contra, Shri Borkar, the learned counsel appearing on behalf of the Respondent Nos.1(a) to 1(d) would contend that the Petitioner Decree Holder who has a decree for possession in his favour cannot object to joining of the Respondent Nos.1(c) and 1(d) as Judgment Debtors as the impleadment of the Respondent Nos.1(c) and 1(d) would not affect the Decree Holder in any manner as the right if any claimed by the Respondent Nos.1(c) and 1(d) is interse the Judgment Debtors. The learned counsel would contend that since the Respondent Nos.1(c) and 1(d) are in possession, they are entitled to apply for joining as Judgment Debtors to the execution proceedings. The learned counsel would contend that the Respondent Nos.1(c) and 1(d) can object to the execution of the decree on the ground that they are in possession and if that be so, their impleadment cannot be questioned by the Decree Holder. The learned counsel for the Respondent Nos.1(a) to 1(d) submitted that no interference is called for with the impugned order in the writ jurisdiction.

9. Having heard the learned counsel for the parties, I have considered the rival contentions. In the instant case, it is required tobe noted that in the earlier round of the execution proceedings a compromise was recorded between the Decree Holder and the Respondent Nos.1(a) and 1(b) who are the brothers of the Respondent Nos.1(c) and 1(d). The Respondent Nos.1(c) and 1(d) were deleted from the said execution proceedings on the basis of the registered Release Deed which they had executed in favour of the Respondent Nos.1(a) and 1(d). As indicated above the advocate for the Respondent Nos.1(c) and 1(d) had also made an endorsement on the joint purshis which recorded the compromise in the said darkhast proceedings. It is on account of the fact that the Respondent Nos.1(a) and 1(b) were not abiding by the compromise which was recorded in the said darkhast proceedings that the Petitioner Decree Holder had to file the fresh darkhast proceedings being Regular Darkhast No.66 of 2010 which was done on 14/4/2010. In view of the fact that due to inadvertence the names of the Respondent Nos.1(c) and 1(d) were appearing in the cause title of the fresh darkhast proceedings that the Petitioner had filed the application for deletion of the Respondent Nos.1(c) and 1(d) from the array of the Respondents in the fresh darkhast proceedings. The said application came to be allowed by the Executing Court by the order dated 14/6/2011. It is pertinent to note that almost after a period of 5 months of the deletion of the Respondent Nos.1(c) and 1(d) from the present darkhast proceedings that they have executed the Correction Deed on 4/11/2011 and filed the instant Application Exhibit 34 on 6/1/2012. What is significant to note is that in so far as the said Correction Deed is concerned, though there were other properties which were covered by the Release Deed, the Correction Deed is only in respect of the suit property. The said Release Deed has been acted upon at the time of filing of joint compromise purshis in the earlier round of darkhast proceedings as the cognizance of the said registered Release Deed was taken and the Respondent Nos.1(c) and 1(d) had accordingly endorsed on the said joint compromise purshis, that they had no objection for their deletion in view of the Release Deed executed by them. The present darkhast proceedings, as indicated above, are for executing the compromise which was arrived at between the parties in the earlier round of darkhast proceedings. The situation therefore can be said to have changed, inasmuch as it is not for executing the original decree that the instant darkhast proceedings have been filed but it is for execution of the compromise that was arrived at in the earlier round of darkhast proceedings. It is in the said context the Application filed by the Respondent Nos.1(c) and 1(d) for their impleadment in the instant darkhast proceedings ought to have been considered. It is pertinent to note that the Correction Deed has been executed long after the compromise on 26/2/2010 and the deletion of the Respondent Nos.1(c) and 1(d) from the present darkhast proceedings on 14/6/2011. There is therefore substance in the contention of the learned counsel appearing on behalf of the Petitioner that the said Correction Deed has been executed to enable the Respondent Nos.1(a) and 1(b) to somehow stall the execution of the compromise which was arrived at between the parties. The said fact is further fortified by the fact that the Correction Deed is in respect of the suit property only whereas the original Release Deed was in respect of a number of properties which the Respondent Nos.1(c) and 1(d) relinquished in favour of their brothers i.e. the Respondent Nos.1(a) and 1(b).

10. The Trial Court as can be seen has allowed the said Application Exhibit 34 on the ground that since the Respondent Nos. 1(c) and 1(d) claimed to be in possession, they are required to be heard in the matter. If the Respondent Nos. 1(c) and 1(d) claim to have any right in the suit property, may be even to the extent of being in possession, they ought to file appropriate proceedings objecting to the execution of the compromise. However, they could not have resorted to the Order 1 Rule 10(2) of the Code of Civil Procedure for their impleadment once again after having released their share in favour of their brothers, and they having been deleted on the said basis. The Correction Deed on the basis of which the Respondent Nos.1(c) and 1(d) now claim a share in the property can be said to be executed by the Respondent Nos.1(c) and 1(d) for reasons not far too seek.

11. In that view of the matter the impugned order dated 14/3/2012 is required to be quashed and set aside and is accordingly quashed and set aside. The Application Exhibit 34 would accordingly stand rejected. However, it is clarified that the Respondent Nos.1(c) and 1(d) would be entitled to object to the execution of the compromise by adopting such proceedings as are available and permissible in law, and if such proceedings are filed, needless to say that the same would be considered on their own merits and in accordance with law. Rule is accordingly made absolute to the aforesaid extent with parties to bear their respective costs of the present Petition.

Petition allowed.