PRABHAKAR NANDRAM KALE Vs. SAHEBRAO MAHADEO KALE

JUDGEMENT

(1.) IN a Special Civil Suit regarding partition of joint family property on the basis of compromise, a decree came to be passed and to execute that decree Special Darkhast No.202 of 1988 came to be filed by the decree holder in the Court of Civil Judge, Senior Division Pune. The landed property was to be partitioned and, therefore, the decree was sent to the Collector for execution and collector after suggesting partition sent papers to the Civil Court for passing appropriate orders.

(2.) DURING that proceedings, the present petitioner, who is judgment debtor No.4, filed application, Exhibit-57, contending therein that the decree holder No.1 was holding the property as Karta of the joint Hindu family and that he was also managing the entire property in that capacity. D.H.No.1 let out ota and some portion to Shashikala Kale in his capacity as Karta and the factum of creation of tenancy as between the decree holder and third party Shashikala was suppressed from the court while obtaining the decree for partition. So also it is stated that some portion of partible property has been acquired for the purpose of road widening by the Municipal Corporation of Pune and that fact was suppressed by the decree holder while obtaining the decree for partition which is under execution. Therefore, according to the petitioner-original judgment debtor No.4, the decree under execution cannot be executed as the portion under the land acquisition is not excluded by the Court Commissioner and he was kept in dark about the factum of creation of tenancy and land acquisition. As such, it was prayed that these questions may be adjudicated before the decree is further executed and possession is delivered.

(3.) IT appears that a transfer application was also moved before the District Judge, Pune by judgment debtors in Misc. Civil Applications No.344 of 1992 and 346 of 1992 and the said Darkhast came to be transferred from the Court of IVth Joint Civil Judge, Senior Division Pune to the Court of Third Joint Civil Judge, Senior Division, Pune for disposal according to law. The executing court was directed to hear applications, Exhibits-46 and 57 filed by the judgment debtors and pass appropriate orders.