JAYAWANT DATTATRAYA MURTADAK Vs. NAMDEO DADA KOLHE

JUDGEMENT

(1.) Heard counsel for the petitioner. Petitioner is the judgment debtor in Regular Darkhast No.48/2008 pending before the learned Civil Judge (J.D.) Sangamner, District Ahmednagar (herein after referred to as 'executing court'). The petitioner has filed an application under section 47 of the Code of Civil Procedure in R.D.No.48/2008, filed by the respondents/decree holder. Copy of the application filed by the present petitioner annexure 'F' is on record. Few of the facts or proceeding, I am listing herein below :-

(2.) Learned counsel for the petitioner took me to the paragraph No. 18-19 of the Judgment of the Trial Court in RCS No.456/1986. From these two paragraphs, he has pointed out admission of the plaintiffs that separate possession receipt executed between him and defendant but same is not produced on record. The court drew adverse inference against the plaintiffs. In paragraph No.19 categorically, Trial Court has observed that "Obviously plaintiff was never put in possession of the suit property and it is the defendant who continued to be in possession of it." Counsel for the petitioner emphasized these two paragraphs in support of his proposition that Judgment debtor/present petitioner was in actual physical possession of the property and therefore, there is no question of handing the possession, there is no decree passed by the competent civil court for delivery of possession by the present petitioner / J.D. Despite this fact, counsel for the petitioner strongly contended that copy of the draft sale deed on record annexure 'E' is illegal, makes mention that possession of the property is given by the court commissioner. He submitted that this draft sale deed is now accepted by the learned Judge by the order dated 22.01.2010 below application under section 47 annexure 'F' . He has also invited my attention to all grounds raised in application under section 47. Copy of which is on record.

(3.) Principal two submissions are addressed to this Court. One that, draft sale deed makes mention of delivery of possession and has been accepted by the trial court illegally, despite the fact that there is no decree passed. Another submission of the counsel for the petitioner is pertaining to recession of contract.