KRISHNAJI DATTATRAYA VELANKAR Vs. C B SAPRE

JUDGEMENT

(1.) FIRST Appeal No.92 of 1991 has been preferred by K.D. Velankar, the decree holder against M/s. Alloy Castings represented by C.B. Sapre, the Obstructionist who obstructed the execution of the decree by the Appellant. The Appeal is preferred against the Judgment dated 29th October, 1990 in Misc. Application No.637 of 1986. The said Misc. Application arose from an application moved by Velankar for removal of obstruction caused by Sapre under Order XXI rule 97 of the Code of Civil Procedure. The 3rd Joint Civil Judge, Senior Division, Pune by impugned Judgment held that Sapre is legally entitled to retain the premises in his occupation and in his independent right can obstruct the execution. The learned Judge further held that the Obstructionist had proved that M/s. Alloy Casting of which he is a partner was a tenant of V. G. Patwardhan who was earlier the owner of the land prior to 1st April, 1970. The learned Judge while disposing off the said application held that the application moved by the Appellant was not barred by limitation. The learned Judge further held that the respondent was not able to prove that the premises in possession of M/s. Alloy Casting is bearing Survey No.35-A-2 and not 35-A-1/1 as incorporated in Safekhat (Agreement to Sale) dated 1st April, 1970 and as such the decree obtained in Special Civil Suit No.428 of 1973 by the Appellant Velankar on the basis of the said Safekhat is not binding on him. The learned Judge on the other hand gave a specific finding that the foundry of the Obstructionist was situated at Survey No.35/A-1/1. For the aforesaid reason the Civil Judge, Senior Division was pleased to reject the application by decree holder Velanker. Hence the Appeal.

(2.) FIRST Appeal No.170 of 1997 arises from Judgment dated 6th December, 1996 passed by the 2nd Joint Civil Judge, Senior Division, Pune in Misc. Application No.189 of 1995. That was also an application filed under Order XXI rule 97 of the Code of Civil Procedure for removal of M/s.Alloy Casting the Obstructionist of which Shri C.B.Sapre is the partner from the property identified as Part of C.T.S.No.165 admeasuring 1070 sq yds. situate at Erandawana, Pune including shed admeasuring 2348 sq.ft. The application was filed pursuant to an order dated 14th September 1994 passed by Trivedi, J in Writ Petition No.3597 of 1994. In terms of the Minutes of Order, it was agreed that the application of the Obstructionist M/s.Alloy Casting filed by C.B. Sapre be treated as obstruction of the Obstructionist to the warrant of possession. It was agreed and it was so directed that the obstruction is directed only to the extent of C.T.S.No.165 (part). It was further agreed that the exact area in occupation of the Obstructionist from C.T.S.No.165 was to be specified by the Obstructionist within a period of one week. In terms of clause 4 of the minutes of order the Obstructionist agreed that save and except the property mentioned namely C.T.S.165 (part) the Obstructionist had no objection to the warrant of possession dated 19th August, 1994 to be executed in respect of the rest of the property. Pursuant to the said order, the decree holder Velankar made the application for removal of Obstruction on 5th October, 1994. The learned trial Judge refused to entertain the application on the ground that the application was not made within time prescribed by the order of this Court on 14th September, 1994.

(3.) THE two appeals and the writ petition are being disposed of by this common Judgment by answering the questions involved in the Appeals and the writ petition. M/s. Alloy Castings through its partner C.B. Sapre will be referred to as the Obstructionist or C.B.Sapre and Velankar the decree holder as the decree holder or Velankar for the purpose of deciding the controversy that arises in these matters.