GITABAI BHAGWAN PARDESHI Vs. HIRKANBAI AADHAR PATIL

JUDGEMENT

(1.) Being aggrieved by order dated 18.2.2020 passed by learned Ad Hoc District Judge-3 & Assistant Sessions Judge, Jalgaon, in Regular Civil Appeal No.26/2020, the petitioner - objector preferred this petition under Article 227 of the Constitution of India. By the impugned order, the learned District Judge has rejected the application (Exh.5) seeking stay to order dated 11.2.2020 passed below Exhibit 59 in Regular Darkhast No.11/2017. By order dated 11.2.2020, the executing Court rejected the objection raised under Order 21 Rule 97 of the Code of Civil Procedure by the petitioner - objector to execution of decree passed in Regular Civil Suit No.270/2013 vide judgment and order dated 25.4.2013, which was confirmed by the first appellate Court in Appeal No.272/2013 as well as this Court in Second Appeal No.61/2017.

(2.) Heard learned counsel for the petitioner, respondent nos.1 to 4 and learned AGP for the respondent no.6. Perused the record and proceedings.

(3.) Learned counsel for the petitioner strenuously contended that in view of the challenge raised in appeal, the petitioner - objector has made out sufcient cause to stay the execution of decree as well as impugned order passed by the executing Court. It is submitted that the petitioner has good case to succeed in appeal. The decree of possession sought to be executed by the respondent nos.1 to 4 has been passed without making the petitioner as party - defendant in the suit. After the demise of father of the petitioner, the name of the petitioner alongwith respondent no.5 (original defendant in the suit) was mutated in 7/12 extract of the suit land in the column of possession in place of their deceased father. The entry to that efect was recorded in the year 2005. The respondent nos.1 to 4 - original plaintifs though aware of this fact did not join her as defendant in the suit. So also the respondent no.5 (original defendant) also did not raise objection to that efect in the suit. It is submitted that after the demise of father of the petitioner, the petitioner is in joint possession of the suit property alongwith the respondent no.5 (original defendant). In absence of any decree passed against her to handover the possession of suit property, the decree is not executable. She, therefore, filed objection as contemplated under Order 21 Rule 97 of the Code of Civil Procedure. By impugned order dated 11.2.2020, the executing Court rejected the objection without conducting enquiry as contemplated under Order 21 Rule 97 of the CPC. In that view, the order passed by the executing Court is not sustainable in law. In support of this submission, the learned counsel has referred and relied upon decision in the case of Udyavara R. Acharya & another v. Jugal Kishor Jagannath Sharda,2020 SCCOnLineBom 798. It is contended that the appeal filed by the petitioner raises arguable case. If the execution of decree is not stayed, the very purpose of filing appeal would be defeated.