Only because execution proceedings were closed cannot be a ground to straight away reject such genuine claim

Citation

AIROnline 2023 BOM 11

Bombay High Court

(GOA BENCH)

BHARAT P. DESHPANDE , J.

CIVIL REVISION APPLICATION - 8 of 2016 D/- 9 - 1 - 2023

Ratnabai Raikar and Ors. v. Joao Fernandes

(A)Civil P.C. (5 of 1908), O.21 R.97, O.21 R.101, S.47 - Objection to execution of decree

- Dismissal of application - On ground that execution proceedings had been disposed of -

Applicants claimed to be in possession and ownership of a specific portion of land which was

included for first time in sale deed which was executed in favour of decree holder - Applicants

were not parties to civil suit, appeal as well as execution proceedings - In view of same,

apprehension of applicants, of dispossession on basis of sale deed was quite genuine and claim

of applicants over said portion of property in sale deed, needed to be entertained and decided

only by Executing Court and not by way of separate suit as mentioned in S.47, O.21 Rr. 99,101

- Only because execution proceedings were closed cannot be a ground to straight away reject

such genuine claim - It is duty of Executing Court to conduct inquiry into applicants' claim over

property - Application of applicants directed to be restored to file of Executing Court.

AIR 1973 SC 2423-Followed

AIR 1998 SC 1827-Followed

AIR 2002 CHH 1-Followed

AIR 2004 CAL 74-Followed

 (Paras 17 , 19 , 20 , 21 , 22 , 23 , 24)