ASHOK RAJARAM PAKHARE Vs. TUKARAM DHONDIBA PAKHARE

JUDGEMENT

(1.) THE Respondent filed the Ejectment Application No. 221/E of 1976 for possession of the suit premises against Dagdu Kamble and Mrs.Akubai Kamble under Section 41 of the Presidency Small Cause Courts Act. He obtained a Judgment and order dated 19th November, 1981 for possession of the same. The Respondent took out warrant for possession on 10th June, 1982. The Bailiff of the Court went to the suit premises and made a report that the warrant for possession was executed and he has also obtained the signature of the Petitioner in that respect.

(2.) THE Petitioner took out Misc. Notice No.887 of 1983 praying that the endorsement dated 10th June, 1982 by the Bailiff be struck down as illegal and bad in law and for interim injunction restraining the Respondent from relying upon the said endorsement for any purpose. This was filed under Section 47 of the Code of Civil Procedure. The Petitioner contended that he was not willing to make the said endorsement. However, the Bailiff threatened him that he would be thrown out on the street along with the family and hence due to pressure and coercion he had signed it. He pointed out that the original opponents Dagdu Kamble and Akubai Kamble were not in the premises at the relevant time. This was opposed by the Respondent, inter alia, contending that the said application under Section 47 of the Code of Civil Procedure was not maintainable as the Respondent had not filed any suit. It was an ejectment application under Section 41 of the Presidency Small Cause Courts Act. It was also contended that the Respondent was not a party to the suit and he cannot be called a representative of Kambles.

(3.) I find that the view taken by the appellate Court that the Appeal was not maintainable was right. I shall best quote from the appellate judgment :