KALAVATI ARUN KAPRE Vs. JAFAR BAJID KJAN

JUDGEMENT

(1.) By this Writ Petition filed under Article 227 of the Constitution of India, the Petitioners are challenging order dtd. 15/4/2017 passed by learned 6th Joint Civil Judge, Senior Division, Pune below Exh. 24 in Regular Darkhast No. 109 of 2015. By the impugned order the said application was rejected. The said application was filed by the Petitioners-Third Parties under Order 21 Rule 97 of Code of Civil Procedure, 1908 (C.P.C.) inter alia praying that their application for obstruction to the execution of the decree be allowed, they be permitted to lead the evidence and it be declared that they have got legal right concerning the suit Property.

(2.) It is the contention of Mr. Kuldeep Nikam, learned Counsel appearing for the Petitioners that the Petitioners i.e. Third Parties are the legal heirs and representative of one Mr. Sopan Raghu Kapare. He submitted that although the suit property is joint family property and although suit property is not partitioned amongst heirs by metes and bounds, the Respondent No. 2 i.e. original Defendant No.1 created third party interest by way of agreement to sale dtd. 30/3/2007 executed in favour of Respondent No.3 i.e. Defendant No.2 and also executed irrevocable power of attorney. Thereafter, the Respondent No.3 (Defendant No.2) executed Isar Pavati dtd. 2/10/2007 in favour of the Plaintiff i.e. Respondent No. 1, who is the contesting party in the present Writ Petition. He submitted that subsequently sale deed was executed on 3/10/2008 by Respondent Nos. 2 and 3 (i.e. Defendant Nos. 1 and 2) in favour of Respondent No. 4 (Defendant No.3).

(3.) He submitted that the Respondent No. 1 filed Special Civil Suit No. 1337 of 2008 seeking specific performance of Isar Pavati dtd. 2/10/2007. He submitted that by the Judgment and Decree dtd. 6/1/2015 the said suit was decreed. He submitted that the decree passed in Special Civil Suit No. 1337 of 2008, is sought to be executed by filing Regular Darkhast No. 109 of 2015. He submitted that at the most the Respondent No. 1 is entitled to 2.16 R land out of 26 R land and that is also after the suit land is partitioned by metes and bounds. Therefore, the Petitioners filed application bearing Exh. 24 in Regular Darkhast No. 109 of 2015 under Order 21 Rule 97 of C.P.C. and sought reliefs more particularly set out therein.