Bombay High Court
Mrs. Suchita Pradeep Salian Nee Suchita … vs Francis Vithal Kamat And Anr on 22 April, 2025
2025:BHC-AS:18067
FA-1433-24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1433 OF 2024
Mrs. Suchita Pradeep Salian nee ]
Suchita Sanjiva Shetty ]
An Adult, Age 53 years, Residing at 7-B ]
Corner View, Ground Floor, Anant Patil Marg ]
Behind Sachin Hotel, Dadar (West) ]
Mumbai - 400 028 ] ... Appellant.
Versus
1. Francis Vithal Kamat ]
A person of Indian Origin ]
Residing at 9100, 3rd Avenue, ]
North Bergen, NJ 07047, U.S.A. ]
]
2. Mrs. Carol Dube ]
Of Jaipur, Indian Inhabitant ]
Residing at Nirmala Path, C Scheme ]
Jaipur - 302 001, Rajasthan ] ... Respondents.
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Mr. K.P. Shah for Appellant.
Mr. Mayur Khandeparkar, Ms. Pooja Patil, Mr. Sanket M. and Mr. Kartik Pandey
for Respondent No.1.
Ms. Sunila Chavan for Respondent No.2.
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Coram : Sharmila U. Deshmukh, J.
Reserved on : March 20, 2025
Pronounced on : April 22, 2025
JUDGMENT:
1. The First Appeal impugns the common order dated 23 rd July,
2024 passed by City Civil Court dismissing Notice of Motion No 905 of
1 of 22
FA-1433-24
2023 which sought the relief of unlocking of the subject premises and
Notice of Motion No.1839 of 2023 seeking compensation for financial
loss caused due to locking of the subject premises. These two
applications were moved in Execution Application No.4121 of 2017 in
S.C.Suit No.4720 of 2009.
2. The facts necessary to be exposited are that on 16 th October,
2009, S.C. Suit No.4720 of 2009 was filed by the Respondent No 1
against her sister and sister in law- Mrs. Evon Azavedo seeking
partition and separate possession of the suit property described as
immovable property bearing No.F.P. No.808, TPS No.IV (Mahim Area),
admeasuring 268.39 sqr.mtrs. together with the ground plus one
upper storey structure being “56 Church View”, standing thereon
situated at Gokhale Road (North), Dadar (West), Mumbai – 400 028.
The suit property was elaborately described in paragraph 2 of the
Plaint as under:
“Immovable property bearing F.P. No. 808, T.P.S. No.IV (Mahim
Area) admeasuring 268.39 square meters together with the
ground plus one upper storied structure being ’56 Church
View’ standing thereon situated at Gokhale Road North,
Dadar (W), Mumbai 400 028 (hereinafter referred to as “the
suit property”). The said property comprises of a garden,
living room, dining room, bedroom, kitchen, bathroom, toilet
& verandah on the ground floor, three bedrooms, bathroom &
verandah on the 1st floor & a terrace on the 2 nd floor. There
exists a godown on the ground floor tenanted to a third party
& a meat shop standing independently which is also tenanted
& currently fetches a monthly rent of Rs.500/-.”
sa_mandawgad / Patil-SR (ch) 2 of 22
FA-1433-24
3. The Respondents inter se arrived at a compromise and consent
decree was passed in terms of the consent terms executed on 4 th
April, 2015. The Consent terms recorded the agreement of the parties
that the suit property, namely, immovable property bearing No.F.P.
No.803, TPS No.IV (Mahim Area), admeasuring 268.39 sqr.mtrs.
together with ground plus one upper storied structure being “56
Church View” and a meat shop standing independently on the said
plot situated at Gokhale Road (North), Dadar (West), Mumbai – 400
028 shall be sold. The parties further confirmed and declared that the
said “56 Church view” comprises of a garden, living room, dining room,
bedroom, kitchen, bathroom, toilet and verandah on ground floor,
three bedrooms, bathroom and verandah on the first floor and a
terrace on the second floor which is in possession of the Defendant
No.1. There exists a godown on the ground floor which is tenanted
premises and a meat shop standing independently standing on the
said plot, which is also a tenanted premises. The consent terms
contained an arrangement as regards residence of the Defendant
No.1 for period of two years or till the completion of the sale of the
property whichever is earlier and the modalities of sale and the
division of the sale proceeds.
4. On 21st September, 2017, Execution Application No.412 of 2017
was filed by the original Plaintiff under Order-XXI Rule 11(2) of Code
sa_mandawgad / Patil-SR (ch) 3 of 22
FA-1433-24
of Civil Procedure, 1908 (for short, “CPC“) seeking execution of the
Consent Decree dated 4th April, 2015. The application sought issuance
of notice under Order XXI Rule 22 of CPC and writ under Order XXI
Rule 35(2) of CPC. The Affidavit in support of execution application
contended that Defendant No.1 expired on 23rd March, 2017 without
any issue and one Eric Edward D’souza-nephew of Defendant No 1 is
occupying the property and has refused to vacate the suit premises.
5. Notice of Motion No.3318 of 2019 was filed by said Eric Edward
D’souza seeking stay to the execution of consent decree and Notice
of Motion No.2518 of 2019 was filed by the Respondent No 1 seeking
issuance of writ under Order XXI Rule 35(2) of CPC directing removal
of obstructionist. On 1st April, 2021, the City Civil Court dismissed the
Notice of Motion No.3318 of 2019 filed by Eric D’Souza and allowed
the Notice of Motion No 2518 of 2019 directing issuance of writ of
warrant of possession under Order 21 Rule 35(2) of CPC. On 18 th
September, 2021, the deputed Bailiff attempted to execute the
warrant of possession which failed due to obstruction caused by Eric
D’souza. Notice of Motion No.2410 of 2021 was filed by Respondent
No.1 seeking police assistance for execution of decree against Eric
D’Souza and his family members.
6. On 26th July, 2022, the Executing Court allowed Notice of
Motion No.2410 of 2021 and directed re-issuance of writ of
sa_mandawgad / Patil-SR (ch) 4 of 22
FA-1433-24
possession warrant and police assistance. The Schedule to the Writ of
Possession Warrant describes the property as under:
“All that piece and parcel of land bearing F.P. No 803, TPS No
IV(Mahim Area) admeasuring 268.39 sq. mtrs together with
the structure standing thereon of ground plus one upper
floor situate and beingi at 56, Church View along with a meat
shop standing independently on the plot at Gokhale Road,
North, Dadar (West), Mumbai 400 028.”
7. On 28th September, 2022, fresh warrant of possession was
issued which was executed on 17th October, 2022. On 21st February,
2023, Notice of Motion No.905 of 2023 was filed by the present
Appellant inter alia seeking unlocking of the commercial premises i.e.
Shop No.1 situated on final plot No.803. The supporting Affidavit
pleaded deemed tenancy of the Appellant alongwith her sister and
mother after the death of their father, who expired on 28 th April,
1997 and that rent of the commercial premises is being paid to the
landlord. It was pleaded that the warrant of possession was for
removal of Eric D’souza and there was no direction by the Registrar to
the bailiff to lock their commercial premises.
8. The notice of motion came to be resisted by the Respondents
raising issue of limitation. The documents relied upon by the
Appellants were disputed and it was contended that the premises
forms part of the suit property which is reflected in the minutes of
order dated 4th April, 2015 and the decree-holder is entitled to the suit
sa_mandawgad / Patil-SR (ch) 5 of 22
FA-1433-24
property which includes the said premises as well as the meat shop
and hence the Bailiff has rightly executed the warrant of possession. It
was further contended that there is no document adduced by the
Appellant to show that the goods lying in the premises belongs to the
Appellant and the photographs would show that the premises has not
been opened and utilised for years.
9. In the affidavit-in-rejoinder, the Appellant averred that by way
of present Application, she is not claiming title or tenancy rights in
respect of Shop No.1 and that limited relief sought is unlocking of her
shop, since the bailiff had broke open lock of the shop and thereafter,
locked the premises at the instructions of the Respondent No 1 and
handed over the keys to the Respondent No 1. It was contended that
shop did not form part of the subject matter of suit and is used as
godown for her own exclusive business and there is no inventory of
the details of goods inside the shop and hence, it is clear that shop
no.1 has been illegally broken at the instance of Respondent No 1.
10. The Executing Court noted the documents produced by the
Appellant which were of the year 1967 to 2011 and held that the
Appellant’s parents may have been in possession but there is no proof
of possession on date of execution of the possession warrant. On the
aspect of limitation, the Executing Court held that shop was locked on
17th October, 2022 and the Appellant ought to have filed the
sa_mandawgad / Patil-SR (ch) 6 of 22
FA-1433-24
application within period of 30 days and therefore the Applications
are barred under Article 128 of the Limitation Act. The Court further
noted that the Appellant’s husband was present in the Court on 10 th
November, 2022 and it is not the case of the Appellant was not of lack
of knowledge.
11. Mr. Shah, Learned Counsel appearing for Appellant would
submit that Application was filed under Section 151 of CPC and not
under the provisions of Order XXI Rule 99 of CPC and therefore
limitation did not apply. He submits that Order-XXI Rule 99 of CPC
proceed on existence of a valid consent decree and the decree directs
the Bailiff to take possession of only one residential house and one
meat shop and not the Appellant’s tenanted structure. He submits
that as possession warrant was issued for two structures, affixing of
lock on the Appellant’s premises is an accidental action of the Bailiff.
12. Drawing attention to the prayers in the application, he submits
that the specific relief was for unlocking of premises pleading that the
warrant of possession was not in respect of their commercial
premises. He submits that the Executing Court has closed his claim
for tenancy by deciding the Application as one under Order-XXI Rule
99 of CPC. He submits that under the statutory provisions only the
dispossession aspect is required to be adjudicated. He further points
out that the fact that only the lock was affixed and no inventory was
sa_mandawgad / Patil-SR (ch) 7 of 22
FA-1433-24
taken as was done in respect of the other premises would indicate
that there was no warrant of possession in respect of his premises.
Drawing support from the decision of Bhanwarlal vs. Satyanarain
[(1995) 1 SCC 6], he submits that the Executing Court was bound to
conduct an enquiry into the tenancy rights and limitation for which
evidence is required to be led.
13. Per contra, Mr. Khandeparkar, Learned counsel appearing for the
Respondent has taken this Court through the Consent Decree and
submits that Clause 3 of minutes of order makes specific reference
to the godown situated on the ground floor and only meat shop is an
independent structure. He would further submit that in the affidavit-
in-rejoinder, the Appellant has accepted that the Respondent No.1 has
taken forcible possession of the closed premises under the guise of
execution of consent decree and therefore, the only applicable
provision would be Order-XXI Rule 99 of CPC. He submits that Order-
XXI Rule 101 of CPC, does not provide for the Application to be tried
like a suit or that the entire procedure as prescribed under the CPC for
the purpose of trial is required to be followed. He would further
submit that as the Appellant in rejoinder state that she does not claim
tenancy rights in the present proceedings, there was no question of
leading any evidence on that aspect. He would submit that it is the
Appellant’s own case that the dispossession had taken place on 17 th
sa_mandawgad / Patil-SR (ch) 8 of 22
FA-1433-24
October, 2022 and the finding of the Court is that Appellant’s
husband had attended the Court on 10 th November, 2022 and
therefore, there was no question of date of acquiring knowledge for
purpose of limitation and thus no evidence is required. He would
further point out Ground (d) in the Appeal memo stating that on the
said date itself the husband of Applicant informed that the possession
has been taken illegally and reported his objection to Respondent
No.1. He submits that even if it is accepted that evidence was required
to be led the Appellant had not filed any Application for purpose of
leading evidence. He would further submit that all documents to show
possession are for the period 1996 and there is nothing to show
dispossession on 17th October, 2022.
14. He would further submit that Section 151 of CPC cannot be
invoked in view of the substantial provisions of Order-XXI Rule 99 of
CPC available for the Applicant. He submits that there is nothing to
show that the Applicant was dispossessed on 17 th October, 2022 and
therefore, there was no question of any inventory. He relies upon the
decision in Silverline Forum Pvt. Ltd. vs. Rajiv Trust [(1998) 3 SCC
723] to contend that adjudication under Order-XXI Rule 97(2) of CPC
need not necessarily involve a detailed enquiry or collection of
evidence.
sa_mandawgad / Patil-SR (ch) 9 of 22
FA-1433-24
15. In rejoinder, Mr. Shah would submit that it is the duty of the
Court to frame necessary issues. Pointing out to the averments in the
plaint, he submits that plaint speaks of the residential property which
is separate from the godown located on the ground floor which is
accepted as tenanted property and therefore warrant of possession
has to be read in that context.
16. The Learned Counsel for the parties have addressed this Court
on the rejection of Notice of Motion No.905 of 2023 as the fate of the
said application would decide the issue of compensation claimed in
Notice of Motion No 1839 of 2023.
17. The main bone of contention is the nature of Application, i.e.,
Notice of Motion No.905 of 2023 filed by the Appellants. The facts of
the case and the submissions advanced would give rise to the
following issues for determination:
(i) Whether the subject premises is part of suit property and
consent decree ?
(ii) Whether the writ of warrant of possession was issued only
for handing over possession of property in possession of
obstructionist ?
(iii) Whether the Notice of Motion No 905 of 2023 filed by the
Appellant seeking unlocking the subject premises constitutes an
application under Order-XXI Rule 99 of CPC and thus attracts
Article 128 of Limitation Act, 1963?
sa_mandawgad / Patil-SR (ch) 10 of 22
FA-1433-24
(iv) Whether the Appellant was in possession of the subject
premises on date of execution of the decree on 17 th October,
2022 ?
18. The Respondent No.1’s S.C. Suit No.4720 of 2009 sought
partition and separate possession of the suit property to which the
Appellant was admittedly not a party. The suit property has been
described in paragraph No.2 of the plaint as immovable property
bearing F.P. No.803, TPS No.IV (Mahim Area) admeasuring 268.39
sqaure meters together with the ground plus one upper storied
structure being ’56 Church View’ standing thereon situated at Gokhale
Road North, Dadar (W), Mumbai 400 028. Clauses (2) and (3) of the
minutes of the order reads as under:
“2. By consent of the parties hereto, the suit property namely,
immovable Property being F.P.No.803, TPS No. IV (Mahim Area)
admeasuring 268.39 sq.mts. Together with the ground plus one
upper storied structure being “56, Church View” and a meat
shop standing independently on the said plot situated at
Gokhale Road North, Dadar (West), Mumbai 400 028, shall be
sold.
3. The Parties hereto confirm, agree and declare that the said “56,
Church View” comprises of a garden, living room, dining room,
bedroom, kitchen, bathroom, toilet and verandah on the
ground floor, three bedrooms, bathroom and verandah on the
1st floor and a terrace on the 2nd floor which is in the possession
of the Defendant No.1. There exists a godown on the ground
floor which is tenanted premises and the meat shop standing
independently on the said plot is also a tenanted premises.”
sa_mandawgad / Patil-SR (ch) 11 of 22
FA-1433-24
19. Clause (2) re-produced above describes the suit premises as
land together with ground plus one upper storied structure and the
meat shop standing independently on the plot. Clause (3) elaborates
the residential premises in possession of Defendant No.1 and
describes the godown on ground floor as tenanted premises and the
meat shop standing independently on the said plot which is also
tenanted premises. The description of the suit premises is contained
in Clause (2) as ground plus one upper storied structure and the meat
shop. The premises, which according to Appellant was in her
possession, for sake of convenience is referred to as subject premises,
is stated to be on the ground floor which is not disputed. As the suit
premises included the entire structure of ground plus one upper
storied structure, there was no necessity of separate description of
the subject premises located on the ground floor of the said structure.
As the meat shop was standing independently on the plot, the same
was described separately. Clause 3 only describes the areas which
were in possession of Defendant No.1 and separates the tenanted
premises by description for purpose of excluding them as not being in
possession of Defendant No 1.
20. The suit was filed for partition and separate possession of
property being Final Plot No 808 alongwith the structure standing
thereon. There is no reason why the subject premises which is
sa_mandawgad / Patil-SR (ch) 12 of 22
FA-1433-24admittedly part of the ground floor structure located on the said plot
would not form part of the suit premises and would be solely
excluded from partition. In fact, the exclusion of the subject premises
would render the suit as one for partial partition which would not be
maintainable. As the suit was for partition, the subject premises would
form part of the suit property and consequently subject matter of the
Consent Decree.
21. The Consent Decree was put in execution by the Respondent No
1 and in view of the obstruction caused by the nephew of Defendant
No 1 led to filing of Notice of Motion No.2518 of 2019 seeking
removal of the obstruction, which was adjudicated and writ of warrant
of possession was issued under Order XXI Rule 35(2) of CPC. As the
resistance continued, Notice of Motion No.2410 of 2021 was filed by
Respondent No 1 seeking police assistance for execution of consent
decree which was allowed by order dated 26th July, 2022 and the
Court ordered re-issuance of possession warrant and directed
providing of police assistance in execution of the decree. The
schedule to the writ of possession warrant describes the immovable
property as under:
sa_mandawgad / Patil-SR (ch) 13 of 22
FA-1433-24
"SCHEDULE
IMMOVABLE PROPERTY
All that piece and parcel of land bearing F.P. No 803, TPS
No IV (Mahim Area) admeasuring 268.39 sq. mtrs together
with the structure standing thereon of ground plus one
upper floor situate and being at 56, Church View
alongwith a meat shop standing independently on the
plot at Gokhale Road, North, Dadar (West), Mumbai 400
028.”
22. The writ was to command the handing over of possession of the
suit premises described in the schedule to the Respondent No 1 and 2
by ordering removal of the obstructionist. As the possession warrant
was issued for execution of consent decree by handing over delivery
of the immovable property to the decree holders, it cannot be
accepted that the possession warrant was confined only to the
portion occupied by the obstructionist. The schedule to warrant of
possession establishes this position. The Bailiff’s report on execution
of warrant reports that the execution was completed “by putting one
lock on the back door of kitchen, first floor of the main door, ground
floor one front door of the suit premises and one on the main gate of
the compound gate and one lock on the shop outside attached with
the suit premises and handed over the keys to the Plaintiff.” It would
be pertinent to note that the Bailiff’s report does not state that any
lock on any portion of the suit premises was broke open during
execution of the Consent Decree.
sa_mandawgad / Patil-SR (ch) 14 of 22
FA-1433-24
23. The admitted position is that the possession of the suit
premises including subject premises was handed over by the Bailiff to
the Respondents in execution of the warrant of possession. The
Appellant filed the concerned application seeking interalia unlocking
of the subject premises and to restore the possession to the
Appellant. The affidavit initially pleaded tenancy rights in the subject
premises. The reply Affidavit raised objection on limitation and
jurisdiction apart from the denial of the claim of Appellant on merits.
In the Affidavit in rejoinder, the Appellant specifically averred that she
is not claiming title or tenancy rights and the contention is that the
subject premises was not part of the suit or the execution application,
which was for removal of obstruction and the claim is for restoration
of possession.
24. The pleadings in the Application make it clear that the grievance
of the Appellant is that she has been dispossessed from the subject
premises in execution of the consent decree and possession be
restored.
25. The statutory scheme of Order-XXI Rules 97 to Rule 105 of CPC
provides the remedy to the person complaining of dispossession in
execution of decree. Order-XXI Rule 99 of CPC provides that where
any person other than judgment debtor is dispossessed of immovable
property by decree holder, he may make an application to the Court
sa_mandawgad / Patil-SR (ch) 15 of 22
FA-1433-24
complaining of such dispossession. Order-XXI Rule 100 of CPC
provides that upon determination of questions referred to in Rule
101, the Court shall in accordance with such determination pass an
order directing the applicant to be put in possession or otherwise.
Rule 101 vests jurisdiction in the Executing Court dealing with the
application to determine all questions including questions relating to
right title or interest in the property notwithstanding anything to the
contrary contained in any other law for the time being in force. Rule
103 provides that where any application has been adjudicated under
Rule 98 or 100, the order made thereon shall have the same force and
be subject to the same conditions as to an appeal or otherwise as if it
were a decree.
26. The nature of relief sought in the Application places the
Application as one under Rule 99 of Order-XXI claiming dispossession
and seeking relief which could be granted under Rule 100 of Order-
XXI after determination of the right under Rule 101. As rightly
pointed out by Mr. Khandeparkar, the provisions of Section 151 of CPC
which only protects the inherent powers of the Court cannot be said
to apply where there is substantive provision available under CPC.
The tenancy right which was initially claimed in the Application was
expressly given up by the Appellant in the Affidavit in rejoinder and
the only issue presented for adjudication was the issue of restoration
sa_mandawgad / Patil-SR (ch) 16 of 22
FA-1433-24
of possession on the ground that the subject premises was not part of
the suit premises and not subject matter of warrant of possession.
27. To address the aspect of dispossession, the Executing Court has
taken into consideration the documents produced on record and has
rightly held all the documents are of the year 1996 or prior thereto
and cannot be said to be proof of the fact that on the date of
execution of the decree i.e. 17 th October, 2022, the Applicant was in
possession of shop. Mr. Shah has not assailed the said finding and
there is no material demonstrated to show possession on 17 th
October, 2022. The electricity bill of the year 2019 which shows zero
consumption of electricity militates against the case of Appellant’s
possession. The Appellant has not been able to prove that she was in
possession of the subject premises on 17th October, 2022, i.e., on date
of execution of consent decree.
28. In the context of claim for compensation, the Executing Court
held that for adjudication of the same, it was necessary for the
Appellant to bring on record material to show that she was tenant or
licensee on date of execution of decree. The Executing Court noted
the contention that the Appellant claimed that her parents were using
the suit premises and license was issued in their favour, which rights
are not inheritable. The provisions of Order 21 Rule 101 of CPC vests
jurisdiction in the Executing Court to determine all issues of right title
sa_mandawgad / Patil-SR (ch) 17 of 22
FA-1433-24
and interest in the premises raised before the Executing Court
relevant to the adjudication of the application, which in this case was
as regards the claim for compensation. As the Appellant specifically
claimed that she is not claiming title or tenancy rights, there is no
adjudication of the Executing Court on the tenancy rights of the
Appellant. There is no finding of the Executing Court on the
Appellant’s tenancy rights and it has only considered whether the
possession can be handed back to the Appellant and has dismissed
the claim on ground of limitation by rightly treating the application as
one under Order 21 Rule 99 of CPC.
29. It would be relevant to note the arguments of Advocate of the
Appellant before the Executing Court recorded in paragraph 14 of the
impugned judgment that though the decree holder submitted that
the Applicant ought to have filed separate Application to seek
possession, the Court had ample power to deal and decide the notice
of motion under Order-XXI Rule 99 of CPC and that under Order-XXI
Rule 99 of CPC does not prescribe the period of limitation within
which such application needs to be filed. It is therefore clear that
before the Executing Court, the Appellant proceeded on the basis
that Application was filed under the provisions of Order-XXI Rule 99
of CPC and not under Section 151 of CPC. The adopting of remedy of
filing of First Appeal against the impugned order would demonstrate
sa_mandawgad / Patil-SR (ch) 18 of 22
FA-1433-24
that the Appellant treated the Application as filed under Order-XXI
Rule 99 of CPC and the order as decree as provided under Order-XXI
Rule 103 of CPC. Pertinently, Ground (G) of the Appeal Memo reads as
under:
“G. The Ld. Trial Court erred in summarily rejecting the Notice
of Motion, as an Application under Order 21 Rule 97 has to
be treated as a suit and necessary issue have to be framed
and further parties are given a fair chance to prove their
respective cases.”
30. I am therefore not inclined to accept the contention that the
Application was filed under Section 151 of CPC. The inherent powers
under Section 151 of CPC cannot be invoked when the provisions
provide for specific remedy against the dispossession.
31. The contention of Mr. Shah that absence of carrying out
inventory of the goods lying the subject premises shows that the
Applicant’s premises could not have been locked in execution of
warrant possession overlooks the Bailiff’s report which categorically
states that as the obstructionist was unable to carry the movable
articles, the inventory was done and handed over to the
representative of Plaintiff for safe custody. That apart, as the
Appellant has not been able to demonstrate possession on 17 th
October, 2022, the submission on the ground of inventory also fails.
32. As the Appellant gave up the right to adjudicate the tenancy
sa_mandawgad / Patil-SR (ch) 19 of 22
FA-1433-24
rights, there was no question of leading any evidence. In any event,
there was no application by the Appellant seeking permission to lead
evidence. In the case of Silver Line Forum Pvt. Ltd. (supra), the
Hon’ble Apex Court has held that the adjudication mentioned in
Order-XXI Rule 97(2) of CPC, need not necessarily involve a detailed
inquiry or collection of evidence and the Court can direct the parties
to adduce evidence for such determination, if the Court deems it
necessary. It is thus not necessary that the Application under Rule
101 of Order-XXI of CPC must be tried as a suit. Even otherwise as the
Appellant gave up determination of her tenancy right or title in the
subject premises and the application on its own showing was barred
by limitation, there was no question of any evidence being led.
33. Irrespective of whether the Appellant had any right, title or
interest in the property or was a tenant of the premises, there could
have been an adjudication only if the Application under Order-XXI
Rule 99 of CPC was filed within the period of limitation. In the
present case, the case of Appellant is that on 17 th October, 2022, the
subject premises was locked by the Bailiff and not that the Appellant
was unaware of the execution of the consent decree on 17 th October,
2022. It is also not disputed that husband of the Applicant was
present in Court on 10th November, 2022 and was therefore aware of
the proceedings. Ground (d) of Appeal Memo pleads that on the said
sa_mandawgad / Patil-SR (ch) 20 of 22
FA-1433-24
date itself, the Appellant’s husband informed the Appellant that
possession has been illegally taken and reported his objection to
Respondent No 1. The application thus had to be filed within period
of 30 days from the date of dispossession as per Article 128 of the
Limitation Act, which is in the present case expired on 17 th November,
2022 and the application was clearly barred by limitation. The
pleadings on record establishes that the Application was barred by
limitation and no evidence was required to be led.
34. The impugned judgment refers to the decision of the Apex
Court in the case of Damodaran Pillai (supra) and Aarifaben
Yunusbhai Patel (supra), where the Hon’ble Apex Court has held that
the provisions of Section 5 of the Limitation Act is not applicable to
proceedings arising out of Order-XXI of CPC. The inapplicability of the
provisions of Section 5 of Limitation Act coupled with the admitted
position of the Application being filed beyond the period of 30 days
leads to an inevitable conclusion that the Application was barred by
law of limitation. To overcome the obstruction of limitation, before
this Court, the contention of Mr. Shah was that the application was
filed under Section 151 of CPC, which is contrary to the stand before
the Executing Court and the ground in the Appeal Memo. As discussed
above, the contention cannot be accepted as the grievance in the
Application was of dispossession by the decree holder and for
sa_mandawgad / Patil-SR (ch) 21 of 22
FA-1433-24
redressal of the said grievance the remedy is necessarily an
application under Order-XXI Rule 99 of CPC.
35. In light of the above, First Appeal fails and stands dismissed.
36. In view of dismissal of Appeal, Civil/Interim Application, if any,
does not survive and the same stands dismissed.
[Sharmila U. Deshmukh, J.]
sa_mandawgad / Patil-SR (ch) 22 of 22
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 22/04/2025 20:48:54