DEVASIBHAI DAHYABHAI PATEL Vs. SITARAM LAXMINARAYAN RATHI

JUDGEMENT

(1.) THIS Civil Revision Application has a chequered history inasmuch as in a suit instituted 34 years back viz.Regular Civil Suit No.508 of 1963 in Civil Court, Pune a decree for possession has been passed but the decree holder has not been able to secure the possession of the landed property so far due to various intermediate proceedings. One such proceeding arises out of the order passed by the executing court on 30th June 1988 in Regular Darkhast No.219 of 1980 wherein by overruling the objections raised by the petitioners, herein, a warrant for delivery of possession under Order 21 Rule 35, C.P.C. has been directed to be issued. That order is challenged in this revision application.

(2.) THE brief facts are that lands bearing Survey Nos.240, 240/A, 240/B,2 40/C-1 and 240/C-2 of village Chinchwad, District Pune originally belonged to one Tukaram Aundhe and his brother, Pandharinath. These two brothers had obtained these lands from one Laxminarayan, the father of the present respondent No.1. Since they did not repay the amount, Laxminarayan filed a money suit against them and obtained a decree. In execution of that decree, these lands were put to sale and one Chhaganlal purchased the same in that auction on 13th February 1937. It is the case of respondent No.1 that, in fact, Laxminarayan had purchased these lands benami in the name of Chhaganlal and later on, on 4.7.1948 Chhaganlal executed a deed of relinquishment in favour of Laxminarayan. After the death of Laxminarayan, respondent No.1 succeeded to his interest and thus became the owner of these lands. It appears that though the lands were sold in auction, Aundhe brothers sold them in favour of Nagesh Jadhav and Bapurao Hange on 20th April 1951. Later on, these two persons sold these properties to Cooper company on 2.6.1955 and Dnyanoba Kate on 27.4.1959. Since in pursuance of the above transactions, respondent No.1 lost properties' possession, he filed Regular Civil suit No.508 of 1963 for possession of the properties. That suit was decreed by the Civil Court, Pune but in First Appeal preferred in District Court that decree was reversed. As such, Second Appeal was preferred in this court and this court by its judgment dated 2nd March 1979 allowed the appeal of respondent No.1 and granted decree for possession. It is this decree which is put in execution by filing Regular Darkhast No.219 of 1980 and is pending before the Joint Civil Judge, Junior Division, Pune.

(3.) THE petitioners, who are judgment debtors No.11B, 11D, 11E and 11F, objected to execution proceedings by their say Exhibits-53 and 56. The petitioners contended that they were bonafide purchasers of land bearing Survey No.240A from Kate and that the decree being joint and several against defendants No.10 and 11 in view of compromise between the decree holder and defendant No.10, the liability of defendant No.11 is also wiped out since the decree is satisfied by virtue of this compromise. That is how the execution of the decree was opposed by these defendants/judgment debtors.