DIPALI HIMMAT MEHERWAL Vs. SHAIKH NAZIR MOHAMMAD NASIR

JUDGEMENT

(1.) Heard Mr.A.P.Bhandari for the applicants and Mr.S.G.Jadhavar for respondent Nos.1 to 4.

(2.) The revision application challenges order dated 23.11.2017 made by the Second Joint Civil Judge, Senior Division, Ahmednagar (Trial Court), rejecting their application under Order VII Rule 11 of the Code of Civil Procedure, seeking rejection of the plaint in Special Civil Suit No.46 of 2015.

(3.) Mr.Bhandari, learned counsel for the applicants submits that upon a meaningful reading of the plaint, it is quite clear that the suit is barred under the provisions of Section 47 of the Code of Civil Procedure as well as the provisions under Order XXIII Rule 3 of the the Code of Civil Procedure. He submits that, there is no dispute that there was a decree obtained which was put into execution. At the stage of execution, the applicants objected by invoking the provisions under Order XXIII Rule 3 of the Code of Civil Procedure. The objections were initially dismissed, however, on appeal, the matter was remanded to the Executing Court with a direction for reconsideration. At that stage, the applicants purchased the shares from Shakuntalabai Patole and consequently, stepped into the shoes of Shakuntalabai. It is in this execution proceedings that, consent terms were agreed and execution proceedings were disposed of. On the said basis, Mr. Bhandari points out that respondent Nos.1 to 4 were parties to the consent terms. On the basis of such consent terms, and order made thereon, the decree has been further executed by the Collector under the provisions of Maharashtra Land Revenue Code. Mr.Bhandari submits that issues raised in the plaint are nothing but issues which arise in the course of execution of decree and therefore, in terms of Section 47 of the Code of Civil Procedure, there is no question of maintaining a separate Suit for the said purpose. Mr.Bhandari also points out that the Suit of this nature, which seeks to question the consent decree, would not be maintainable in terms of Order XXIII Rule 3 of the Code of Civil Procedure.