Skip to content


Muzfar Hasan S/O Shekumiya Vs. Rajebahadu Pannalal Manufacturing Co. Pvt. Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 605 of 1977
Judge
Reported in1982(2)BomCR523
ActsCode of Civil Procedure (CPC) , 1908 - Sections 38
AppellantMuzfar Hasan S/O Shekumiya
RespondentRajebahadu Pannalal Manufacturing Co. Pvt. Ltd. and ors.
Appellant AdvocateH.A. Solkar and ;N.D. Bhatkar, Advs.
Respondent AdvocateS.S. Gokhale, Adv., i/b., ;K.J. Abhyankar, Adv. for respondent No. 1
DispositionAppeal dismissed
Excerpt:
- .....contends that the decree-holder is not entitled to take possession of this portion of the land in execution of a decree which is restricted only to eastern 28 gunthas from survey no. 302. mr. solkar further contends that in the absence of particulars of identification the decree as it stands is unexecutable as long as the decree-holder does not care to get it amended from the court passing the decree.3. both the courts have rejected the contention of the judgment-debtor. i am unable to see any error in the reasoning of the two courts below. the learned extra assistant judge has relied on the passage from the judgment of the supreme court in the case of jainarain ram laundia v. kedar nath khetan, : [1956]1scr62 . it supports the contention of mrs. gokhale appearing for the decree-holder......
Judgment:

V.S. Deshpande, C.J.

1. This second appeal arises out of the execution proceedings respondent No. 1 instituted the suit for recovery of possession against the opponents herein and the other respondents Nos. 2 to 9. The plaintiff claimed possession of eastern side 28 gunthas of land comprised in Survey No. 302 situate in Malegaon. This area was leased by the plaintiff to the firm of the defendants in or about the year 1932 for the purpose of running a Ginning Factory. The suit was decreed on 5th April, 1963 and the said decree had been affirmed in first and second appeal in this Court. Respondent No. 1 initiated execution proceedings on 28-9-1970. One of the judgment-debtors, that is, opponents resisted the execution proceedings on the ground that the decree does not give the sufficient particulars of the suit property. Both the Courts accepted that the decree does not contain the required particulars even so they thought it necessary to hold enquiry and fixed the description of the property covered by the decree. It is against such an order of the Appellate Court dated 4th November, 1976 this appeal is preferred.

2. Mr. Solkar, the learned Advocate for the opponents contends that the defendants have constructed the valuable structures and part of the structure is located on the Pimpalgaon Road which has ceased to be the part of Survey No. 302. Mr. Solkar, therefore, contends that the decree-holder is not entitled to take possession of this portion of the land in execution of a decree which is restricted only to eastern 28 gunthas from Survey No. 302. Mr. Solkar further contends that in the absence of particulars of identification the decree as it stands is unexecutable as long as the decree-holder does not care to get it amended from the Court passing the decree.

3. Both the courts have rejected the contention of the judgment-debtor. I am unable to see any error in the reasoning of the two courts below. The learned Extra Assistant Judge has relied on the passage from the judgment of the Supreme Court in the case of Jainarain Ram Laundia v. Kedar Nath Khetan, : [1956]1SCR62 . It supports the contention of Mrs. Gokhale appearing for the decree-holder. The Court is under as obligation to execute the decree passed by it and if in the process of the execution it becomes necessary to hold enquiry for fixing the identity of the property, the Court has ample power to do it. I am unable to see any merit in this second appeal and the same is accordingly dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //