SHRI PEDRO FERNANDES Vs. SHRI ROSARINHO MENEZES

JUDGEMENT

(1.) Heard Shri Shivan Dessai, learned Counsel appearing for the petitioners and Shri S. D. Lotlikar, learned Senior Counsel appearing for respondent no.1. Rule. Heard forthwith by consent of learned Counsel. Ms. S. Pai Kir, learned Counsel waives service on behalf of respondent no.1. The above petition challenges the order dated 06.04.2010 passed in Civil Misc. Application No. 23/08/A in Execution Application No. 6/2005/A whereby the learned Judge by the impugned order allowed the application filed by respondent no.1 and recalled the earlier order dated 29.08.2007.

(2.) Shri Shivan Dessai, learned Counsel appearing for the petitioners has taken strong exception to the impugned order and pointed out that the learned Judge has exceeded its jurisdiction in passing the impugned order as it was not incumbent upon the learned Judge to come to the conclusion that the judgment passed by this Court is per incuriam in view of the judgment passed by the Apex Court reported in VASUDEV DHANJIBHAI MODI v. RAJABHAI ABDUL REHMAN, 1970 AIR(SC) 1475. The learned Judge further pointed out that the earlier order dated 29.08.2007 had become final as after the passing of the said order, the respondent no.1 had preferred a Writ Petition before this Court which came to be withdrawn by order dated 17.04.2008. The learned Counsel further took me through the impugned order and pointed out that the application filed by respondent no.1 was in fact for review of the earlier order dated 29.08.2007 and as such the question of invoking the jurisdiction by the learned Judge under Section 151 of Civil Procedure Code to recall the order does not arise at all. The learned Counsel has further pointed out that on the basis of the judgments passed by this Court, the learned Judge had rightly stayed the execution proceedings as the issue of mundkarship is under adjudication before the competent authority under the Mundkar Act. The learned Counsel further pointed out that the passing of the impugned order by the learned Judge can be considered to be judicial indiscipline in as much as it was not open to the learned Judge to come to the conclusion that the judgment passed by this Court is per incuriam in view of the judgment of the Apex Court when the Writ Petition filed by the respondents was withdrawn. The learned Counsel further pointed out that the learned Judge misconstrued the judgments passed by this Court as well as the judgment of the Apex Court and has come to an erroneous conclusion that the order passed on 29.08.2007 deserves to be recalled.

(3.) When it was pointed out to the learned Counsel appearing for the petitioners as to how the petitioners could encroach on the public road by putting fencing and/or vegetation therein, Shri Dessai, learned Counsel appearing for the petitioners has fairly stated that the petitioners would remove any such vegetation and/or any plantation existing in the disputed portion of six metres wide road on the north-east side of the existing house. Even assuming the petitioners are mundkars of the structure existing in the disputed portion of the property, they cannot claim any right to the surrounding land until the same is purchased in accordance with the provisions of the Mundkar Act. As such, considering the facts and circumstances of the case, at this stage, as the application for temporary injunction filed by the petitioners before the Mamlatdar has been dismissed, the stay granted by the learned Executing Court to the execution proceedings filed by respondent no.1 would be restricted only to the removal of the encroachment by any structure, if any, located in the disputed portion of six metres wide road. The said stay shall operate until the disposal of the proceedings by the competent authority under the Mundkar Act. Such stay shall not in any way affect the right of respondent no.1 to proceed with the execution proceedings to remove encroachment made by any vegetation, fencing and/or any other plantation, trees existing in the disputed portion of six metres wide road.