RATNABAI RAIKAR Vs. JOAO FERNANDES

JUDGEMENT

(1.) By way of present revision application, the Applicants are challenging the order dated 22.01.2016 passed by the learned Civil Judge, Senior Division, Panaji in Civil Misc. Application No.4/2016 thereby rejecting the application filed by the Applicants under Order 21 Rule 97 CPC in Execution Application No. 24/2004. The learned Executing Court dismissed said application on the ground that execution proceedings have been disposed of and therefore, the application is not maintainable.

(2.) Heard learned Senior Counsel Mr Nitin Sardessai along with Advocate Mr. Shivam Fadte for the Applicants, learned Counsel Mr Ashwin D. Bhobe with Ms A. Kuvelkar for Respondent No.15. No one appeared on behalf of L.Rs. of Respondent No.1 though duly served by way of publication.

(3.) Mr Nitin Sardessai submitted that impugned order is bad in law as the learned Executing Court committed jurisdictional error by rejecting application only on the ground that the execution proceedings are disposed of. He submitted that Applicants filed objections to the execution of decree in Execution Application No. 24/2004 under Order 21 Rule 97 CPC thereby objecting to alleged ownership and possession of Respondent No.1 therein and consequently seeking cancellation of sale deed dated 02.12.2006 to the extent of property bearing Survey No.238/1 which was executed under Order 21 Rule 34 of CPC in favour of Respondent No.1 being the Decree Holder in Special Civil Suit No.110/1984. Respondent No.1 allegedly entered into agreement for sale on 20.12.1965 with Srimatibai Vinaeca Anvekar for a price of Rs.28,000/- for purchase of property known as 'DEULIM' OR 'CAPEACHI MOLOI' or 'DAGINACHI MOLOI' situated at Morombi-O-Grande at Merces, bearing Land Registration No. 17307 and Matriz No. 109. Respondent No.1, in order to enforce specific performance of such agreement, filed Special Civil Suit No.110/1984 against late Srimatibai Vinaeca Anvekar and her legal heirs. No specific details including boundaries of the suit property were mentioned in the plaint. The said suit was dismissed on 02.02.2000 holding that the said suit is time barred. Accordingly, Respondent No.1 challenged the said Judgment and Decree of the Civil Court by preferring Regular Civil Appeal No.36/2000. Learned District Judge vide his Judgment and Decree dated 25.05.2004 allowed the said appeal and the suit. It was held that Respondent No.1 is entitled to purchase the said property from the vendors and accordingly directed to specifically perform their part within 60 days. Respondent No.1 then filed execution proceedings before the learned Civil Court under Order 21 Rule 34. Vide order dated 28.11.2006, the learned Executing Court allowed the application and directed the Officer of the Court to execute the sale deed in favour of Respondent No.1. Accordingly, Respondent No.1 deposited remaining balance amount and thereafter, Officer of the Civil Court was pleased to execute and register sale deed in favour of Respondent No.1 dated 02.12.2006. In the sale deed, for the first time, apart from land registration and matriz records, the survey number of the property was mentioned as Survey No.236 admeasuring an area of 9075 sq. mts., Survey No.237 admeasuring an area of 4336 sq. mts. and Survey No.238 admeasuring an area of 17993 sq. mts.