Smt. Rohini Ramchandra Tharkude, Daughter Of Shri. Shankar Sakharam Kate v. Smt. Sindhu Raghunath Kate And ORS

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6462 OF 2014 Rohini Ramchandra Tharkude ...

Petitioner Vs.

Sindhu Raghunath Kate and others ...

Respondents Mr. P. S. Dani, Senior Advocate a/w. Ms Jui A. Nerurkar for Petitioner. Mr. Vilas S. Shelar for Respondents No.1 to 5. Mr. Lendl Coutinho i/b. Mr. Swapnil S. Mohite for Respondent No.7. CORAM : R. G. KETKAR, J.

DATE :

JANUARY 27, 2017 P.C. :

Heard Mr. Dani, learned Counsel for petitioner, Mr. Shelar, learned Counsel for respondents No.1 to 5 and Mr. Coutinho, learned Counsel for respondent No.7 at length.

2.

By this Petition under Article 227 of the Constitution of India, petitioner, hereinafter referred to as 'third party', has challenged the judgment and order dated 12.02.2014 passed by the learned 2nd Joint Civil Judge, Senior Division, Pune below exhibit-24 in Special Darkhast No.59 of 2013. By that order, the learned trail Judge has rejected the application filed by the third party raising objections as also praying for impleadment as third thirty in the Darkhast instituted by the respondents.

3.

In support of this Petition, Mr. Dani submitted that respondents No.1, 2, 4 and 5, hereinafter referred to as 'decree-holders', had instituted Suit against M/s. Ganesh Associates and two others and that Suit was decreed by the trial Court on 23.04.2013. Defendants No.1 and 2 therein were directed to execute sale deed of flat admeasuring 1050 1/2

WP6462_14.sxw sq.ft. and shop admeasuring 750 sq.ft. which is reserved in 'J' Wing of the building situate over Survey No.21/4, more particularly described in paragraph 1 of the plaint. He submitted that third party is the co-owner and she has half share in the suit property. The decree must enure to the benefit of the third party as well. The Suit was instituted without impleading third party to the Suit and the decree was also obtained. Third party is, therefore, entitled to half share in the suit property and therefore, she should be impleaded in the Darkhast proceedings. By the impugned order, the learned trial Judge has held that application is not tenable and the third party has remedy.

4.

I do not find that the learned trial Judge has committed any error in rejecting the application. It is settled position of law that executing Court cannot go behind the decree. If at all third party has grievance, she has remedy to proceed against the decree-holders as the third party claims that she has half share in the suit property. Reserving that liberty, to the petitioner, no case is made out for invocation of powers under Article 227 of the Constitution of India. Petition fails and the same is dismissed.

(R. G. KETKAR, J.) Minal Parab 2/2