Bombay High Court
Pandharinath Dashrath Chavan And … vs Murlidhar Kanhyalal Shristav (Died) … on 9 June, 2025
2025:BHC-AUG:14471
(1) cra-71-2018.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.71 OF 2018
AND
CIVIL REVISION APPLICATION NO.72 OF 2018
AND
CIVIL REVISION APPLICATION NO.73 OF 2018
AND
CIVIL REVISION APPLICATION NO.74 OF 2018
AND
CIVIL REVISION APPLICATION NO.75 OF 2018
AND
CIVIL REVISION APPLICATION NO.76 OF 2018
AND
CIVIL REVISION APPLICATION NO.77 OF 2018
1. Pandharinath S/o. Dashrath Chavan
Age: 78 years, Occ. Business
2. Prakash S/o. Pandharinath Chavan
Age: 42 years, Occ. Business
Both R/o. Vinayak Colony, Vaijapur,
Tq. and Dist. Aurangabad ..Applicants
Versus
1. Jafar Fate Mohd.
Age: Major, Occ. Business
R/o. Vaijapur, Dist. Aurangabad.
2. State of Maharashtra
Through Sub Divisional Officer, Vaijapur,
Dist. Aurangabad. ..Respondents
...
Mr. R. N. Dhorde, Senior Advocate i/by. Mr. P. S. Dighe a/w Mr. V.
R. Dhorde, Advocate for Applicants.
Mr. B. B. Kulkarni, Advocate for Respondent No.1.
Mr. V. S. Badakh, AGP for Respondent No.2.
...
CORAM : S. G. CHAPALGAONKAR, J.
Reserved On : 08th MAY, 2025.
Pronounced On : 09th JUNE, 2025.
JUDGMENT:
–
1. The applicants impugn order dated 19.03.2018 passed by
learned Civil Judge Junior Division, Vaijapur in R.D. Nos.40/2015,
(2) cra-71-2018.odt
36/2015, 37/2015, 38/2015, 39/2015, 41/2015 and 42/2015, by which
application filed below Exhibits 62, 62, 67, 81, 87 and 123 by Sub
Divisional Officer on behalf of State has been allowed holding that
Civil Judge Junior Division has no jurisdiction to entertain and try
objection applications filed by State in pending execution
proceeding. Eventually, request letter is issued to Principal
District Judge, Aurangabad to withdraw execution proceeding
alongwith objection petitions filed by State from the file of Civil
Judge Junior Division, Vaijapur and transfer same to the Court of
Civil Judge Senior Division, Vaijapur administratively vide
Paragraph No.233 of the Civil Manual.
2. Brief facts giving rise to present Civil Revision Applications
can be narrated as under:
The applicants (decree holders) purchased house property
out of Survey No.179/1/1 (CTS No.963) situated at Vaijapur from
Vinodkumar Hansraj Agarwal. It consists of Cinema Theater and
Eleven shops, which were occupied by tenants. Since seven
tenants were in default of rent, applicants had instituted suits for
recovery of rent and possession against them in the Court of Civil
Judge Junior Division at Vaijapur. On 23.02.2009, suits were
decreed and decree has been confirmed upto this Court. The
applicants filed proceeding for execution of decree vide R.D.
Nos.40/2015, 36/2015, 37/2015, 38/2015, 39/2015, 41/2015 and
(3) cra-71-2018.odt42/2015 before Civil Judge Junior Division at Vaijapur. At this
stage, Sub Divisional Officer filed objections to execution of decree
and delivery of possession on the ground that decree has been
obtained without adding State of Maharashtra as party. The land
Survey No.180/1 is owned by State Government. The Survey
No.179/1 is situated on Northern side of Survey No.180/1. The suit
property is part of Government land. The owners of Survey
No.179/1/1 have encroached upon Government land and raised
construction of shops, so also inducted tenants. The previous
owner Vinodkumar Agarwal was receiving rent. The dispute as to
the ownership of suit property is pending since 1965. The
applicants have purchased suit property in the year 1996 from
original owner Mr. Vinodkumar Agarwal. It is, therefore, prayed
that decree passed in suit be canceled.
3. During pendency of aforesaid objection petitions, Sub
Divisional Officer moved applications contending that since
objections are instituted on behalf of State, proceeding requires to
be transferred to Court of Civil Judge Senior Division in view of
Section 32 of the Maharashtra Civil Courts Act, 1869. The Civil
Judge Junior Division ceased to hold jurisdiction to take up
objections filed on behalf of State, which requires hearing and
disposal as a suit in light of Paragraph No.345 of Civil Manual.
(4) cra-71-2018.odt
The learned Civil Judge Junior Division, Vaijapur allowed
aforesaid objections and passed impugned order.
4. Mr. Dhorde, learned Senior Advocate appearing for
applicants would submit that applicants are landlord. The eviction
decree has been passed against tenants by Competent Court in the
year 2009. The tenants are directed to deliver possession of suit
property to applicants. The decree has been confirmed by this
Court while dismissing Second Appeals of tenants in the year 2014.
The execution proceeding is pending since 2015. He would submit
that due to political pressure, objection petitions have been filed by
Sub Divisional Officer, who has no right to resist execution of
decree. Mr. Dhorde would invite attention of this Court to the
observations of Additional Collector, Aurangabad while recording
his order dated 04.11.1992, which records that land Survey
No.179/1 is private property and Government land is part and
parcel of Survey No.180. He would further invite attention of this
Court to the observations made in order dated 22.09.2014 passed
by this Court in Second Appeal No.812/2012 alongwith companion
Appeals, which records that appellants/tenants have admitted that
vendors of applicants was their landlord and they were paying rent
to him. As such, landlord and tenants relationship is admitted
with predecessor in title of applicants. Mr. Dhorde would submit
that this Court while deciding Second Appeals has observed that
(5) cra-71-2018.odt
“whether shops in questions are standing in Government land
encroached by Nadarshah or by Hansraj is an independent
question between Government and Hansraj or his successors
interse. The status of tenants would remain as it is. They cannot
raise grievance denying title of their landlord or claim that
property in question is Government property”. Mr. Dhorde would
further submit that objection raised on behalf of Sub Divisional
Officer is untenable. He would further urge that Civil Judge
Junior Division, Vaijapur had jurisdiction to entertain execution
proceeding and deal with objection raised by respondent no.2 in
accordance with law. The impugned orders were passed relying
upon Section 32 of the Maharashtra Civil Courts Act and
Paragraph No.345 of Civil Manual is untenable and liable to be
quashed and set aside.
5. Per contra, Mr. Badakh, learned AGP for respondent-State
vehemently submits that suit property is part of Government land.
The decree under execution is collusive. Therefore, objection under
Order XXI Rule 97 of Code of Civil Procedure has been rightly
raised. According to him, even a stranger who obstructs or resists
delivery of possession of property, claiming derivative title from the
judgment debtor or independent right, title, or interest in the
decretal property, has the right to raise an objection under Rule 97
of the Code of Civil Procedure. The Executing Court is under
(6) cra-71-2018.odt
obligation to determine all such objections under Rule 101.
Mr. Badakh would submit that in view of provisions of Section 32
of Maharashtra Civil Courts Act, no subordinate Court other than
Court of Civil Judge Senior Division can receive or register any suit
in which any officer of Government in his official capacity is a party
and every such proceeding needs to be refer to Court of Civil Judge
Senior Division, who is empowered to hear and decide the same.
He would further submit that Paragraph No.345 of the Civil
Manual provides that any disputes arise in the course of suit, the
provisions as to suits shall be applicable as objections under Order
XXI Rule 97 requires to be decided as a suit where Government is a
party, proceeding is required to be transferred or placed for
decision before Civil Judge Senior Division. In support of his
contentions he relies upon following judgments.
1. Periyammal (D) through Lrs. And others Vs. V.
Rajmani and Another Etc.1.
2. Brahmdeo Chaudhari Vs. Rishikesh Jaiswal2.
3. Tanzeem E Sufia Vs. Bibi Haliman and others, Civil
Appeal No.5457/2022 (SC).
4. Shreenath Vs. Rajesh and Others3.
6. Having considered submissions advanced by learned
Advocates appearing for respective parties, limited issue that
arises for consideration in these Civil Revision Applications is
1 2025 INSC 329.
2 AIR 1997 SC 856.
3 1998 4 SCC 543.
(7) cra-71-2018.odt
“Whether in execution proceeding initiated by landlord against
tenants in pursuance of decree of eviction/delivery of possession, if
objection to execution of decree is raised on behalf of State through
its authorized officer, proceeding as to the objection can be taken
up by Civil Judge Junior Division?”
7. It is apposite to refer to Section 32 of the Maharashtra Civil
Courts Act, 1869, which reads thus:
“1[32. (1) No subordinate Court other than the Court of 2[Civil
Judge (Senior Division)] and no court of small causes shall
receive or register any suit in which 3[the Crown] or any
officer of the 4[Government] in his official capacity is a party.
(2) In every such case the Plaintiff shall be referred to
Court of the 2[Civil Judge (Senior Division)] and such suit
shall be instituted only in the Court of the 2[Civil Judge
(Senior Division)] and shall be heard by such 5[Civil Judge],
subject to the provisions of section 24 of the Code of Civil
Procedure, 1908.”
(3) …………..
(a) ……..
(b) ……..”
8. Plain reading of aforesaid provision shows that only Court of
Civil Judge Senior Division is competent to receive, register or
decide suit, wherein Government or its officers in official capacity
is a party.
9. Similarly, Paragraph No.345 of Civil Manual mandates that
when disputes arise in the course of execution proceedings, the
provisions as to suits, unless inapplicable, should be followed. In
(8) cra-71-2018.odt
such cases, issues must be framed, evidence taken and judgment
written according to the law applicable to suits.
10. It is well settled that objection to execution of decree has to
be decided by following procedure under Rule 101. Further Rule
103 provides that application adjudicated upon under Rule 98 or
Rule 100 shall have the same force and will be subject to the same
conditions as an appeal as if it were a decree. At this stage
observations of Supreme Court of India in case of Periyammal
(D) through Lrs. and others (supra) can be referred, which reads
thus:
“49. Thus, Rule 97 not only provides remedy to a decree
holder in obtaining possession of an immovable property but
also to a stranger who obstructs or resists delivery of
possession of the property by claiming derivative title from
the judgment debtor or independent right, title or interest in
the decretal property. Whereas, Rule 99 gives right to a third
party claiming right, title or interest in the property to seek
restoration of the decretal property. Suffice it to say that the
remedy under Rule 99 is available when a person claiming
right to the decretal property is already dispossessed.
50. Rule 101 enjoins upon the executing Court dealing with
application under Rule 97 or 99 to determine all questions
including questions relating to right, title or interest in the
property, arising between the parties and relevant to the
adjudication of the application. As held by this Court in
Silverline Forum (supra) the question that the executing
court is obliged to determine under Rule 101 must possess to
adjuncts viz. (i) that such question should have legally
arisen between the parties and (ii) such question must be
relevant for consideration and determination between the
parties. Upon adjudication of such questions, the executing
court is under an obligation to pass appropriate order as
contemplated under Rule 98 or 100, as the case may be.
When eventually such order is passed, it would be treated as
decree and no separate Suit would lie against such order. It
(9) cra-71-2018.odttherefore follows that the only remedy is to prefer an appeal
before the appropriate court against such deemed decree.”
11. It is, therefore, evident that Executing Court while dealing
with objections has to first find out as to whether question for
adjudication has been legally arisen between parties and relevant
for consideration and determination between parties. Upon
adjudication of such question, Executing Court is under obligation
to pass appropriate order as contemplated under Order XXI Rule
98 or 100, as the case may be.
12. Looking to aforesaid exposition of law, it can be observed that
objection to execution of decree requires comprehensive decision
after following procedure of suit and if objection to execution of
decree is by State Government or authorized officer on behalf of
State, Section 32 of Maharashtra Civil Courts Act will necessarily
oust jurisdiction of subordinate Judge. The Constitution Bench of
this Court in case of The Secretary of State for India Vs.
Narsibhai Dadabhai Patel4 observed that even in cases where
State has been made party by Court at the request of officer and no
suit has been instituted against him by plaintiff, Section 32 confers
exclusive jurisdiction of trying suit of specified description by
District Judge (now Civil Judge Senior Division).
13. In light of aforesaid exposition of law, no fault can be found
in impugned order whereby learned Civil Judge Junior Division
4 AIR 1924 Bom 65.
(10) cra-71-2018.odt
recorded that he has no jurisdiction to entertain and try objection
application by State in execution proceeding with further
stipulation to issue request letter to Principal District Judge,
Aurangabad to withdraw execution proceedings and transfer the
same to the Court of Civil Judge Senior Division vide Paragraph
No.233 of Civil Manual.
14. Although this Court affirmed impugned order, it can be
observed that execution proceeding is arisen out of eviction decree
passed against tenants in a suit instituted by landlord. The issue
as to whether State Government can assert its title over suit
property has been dealt with by this Court while deciding Second
Appeals between parties and after recording findings that tenants
cannot dispute title of landlord, decree has been passed. It is
evident that shops have been constructed by predecessors in title of
applicants. The tenants were inducted by him and he was
receiving rent. If that is so, whether shops in question are
constructed on Government land cannot be subject matter of
execution of eviction decree passed in favour of landlord. In such
case, Executing Court will have to first decide if question posed in
objection legally arise between parties and relevant for
consideration or determination between parties to the suit. The
question that arises if Government wants to claim any right over
the lands in possession of landlord or his tenants, the Government
(11) cra-71-2018.odt
can take up appropriate proceeding as permissible under law to
secure possession of property. Therefore, possibility that objection
petition has been brought at the instance of tenants to prolonge
execution of decree needs examination by Executing Court before
entering into further question.
15. The Executing Court will have to take note of observations
made by this Court while deciding Second Appeals. Primary there
appears dispute as to whether shops are constructed on
Government land from Survey No.180 or those are on the land
from Survey No.179/1. Such question is definitely unconcerned
with execution of decree in present suit. Keeping in mind aforesaid
observations, Executing Court shall proceed to deal with objection
as expeditiously as possible and in any case within a period of six
months from the date of this order.
16. In that view of the matter, Civil Revision Applications stand
rejected.
(S. G. CHAPALGAONKAR)
JUDGE
Devendra/June-2025
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