SHIVADAS SUBRAO AND CO Vs. V D DIVEKAR

JUDGEMENT

(1.) The question that arises for consideration in this revision petition is when a sale in execution has become absolute, whether the court can grant a certificate under Order XXI Rule 94 of the Code of Civil Procedure, to the representative of the deceased purchaser? The facts leading to this question may briefly be stated as follows:

(2.) It is necessary to mention a few more facts in this context. Shivdas Subrao instituted Civil Suit No.44 of 1962 against Malati Bai and others for an injunction restraining them from disturbing his possession and enjoyment of the property block No. 36 described as Mundgol property which was one of the properties belonging to the firm. It also appears from the record that opponent No. 2 Malati Bai had filed Civil Suit No. 89/64. (obviously, the year of the suit must be wrong) in respect of Mundgol property against Shivdas Subrao. The parties arrived at a compromise in Civil Suit No. 44/1962 and a compromise decree was made on 18-7-1963 which is marked as Exhibit 30 in the case. It was inter alia stated in the said compromise decree that the plaintiff Shivdas Subrao and the defendant, namely opponent No.2 Malati Bai had compromised about Mundgol property and that the plaintiff Shivdas Subrao had given up his claim in respect of the present suit property, namely, CTS No. 445/2B in City Survey Ward No. 1 of Hubli City, and Malati Bai stated to have become the absolute owner thereof and that she alone was entitled to continue this proceeding. It was also stated that Malati Bai was directed to withdraw Civil Suit No. 89/64. It also appears from the record that in respect of the partnership business between Shivdas Subrao and Malati Bai's husband R. G. Parekh, nothing was due to either parties. Thus it would appear from the terms of the compromise decree that the parties had once for all settled their disputes in relation to the partnership property.

(3.) To the application made by Shivdas Subrao under O. XXI, R. 94 C.P.C. praying for the issue of a sale certificate, objections were filed on behalf of both the opponents, namely, V. D. Divekar whose property was brought to sale and Malati Bai, widow of the deceased partner R. G. Parekh. One of the contentions raised by Malati Bai, opponent No. 2. was that the sale certificate should be issued in her name alone as Shivdas Subrao had agreed under the compromise decree in C. S. 44/62 that the diary proceedings under the provisions of O. 21, Rule 94, Civil Procedure Code should be continued by her alone in view of the fact that Shivdas Subrao had given up his right in respect of the suit property.