KISHORE TULSHIRAM MANTRI Vs. DILIP JANAK MANTRI

JUDGEMENT

(1.) This Writ Petition takes exception to the judgment and order dtd. 24/11/2022 passed by the Joint Civil Judge (Senior Division), Nashik (for short the "Executing Court") in Application filed below Exhibit "89" in Final Decree Application No.7 of 2019. By virtue of order dtd. 24/11/2022, Executing Court has rejected Application below Exhibit "89" filed by Defendant No.8 - Writ Petitioner seeking framing of issues for deciding the shares of legal heirs of deceased Tulshiram Ratanchandra Mantri and seeking an inquiry for modification of shares determined by the preliminary decree dtd. 27/11/2014 in Special Civil Suit No.575 of 2010.

(2.) Briefly stated, Suit property is a non-agricultural land parcel bearing Survey No.2A/1A/2, C.T.S. No.1449 to 1507 admeasuring 1570 square meters alongwith one standing structure thereon admeasuring 125.46 square meters situated at M.G. Road, Old Lamp Road, Deolali, Shiwar, Nashik (for short "Suit property"). Respondent Nos.1 and 2 are original Plaintiffs in Special Civil Suit No.575 of 2010 before the Civil Judge, (Senior Division), Nashik. Suit was filed for partition and separate possession of Suit property on 23/9/2010. Suit property admittedly belonged to Tulshiram Ratanchandra Mantri, father and predecessor-in-title of parties to Special Civil Suit No.575 of 2010.

(3.) Defendant No.8 - Writ Petitioner has stated that on 23/12/2022, he received certified copy of the Index - III of the registered Will dtd. 13/3/1970 of his father Tulshiram Mantri. One of the submissions advanced by Defendant No.8 - Writ Petitioner before the learned Executing Court is that the decree passed by the Trial Court dtd. 27/11/2014 was a preliminary decree and therefore proceedings before the Executing Court are a continuation of the Suit proceedings itself and hence the Executing Court has power to determine rather re-determine the shares on the basis of the registered Will at the time of inquiry in Final Decree Application No.7 of 2019 and also conduct a trial to redetermine the shares.