Chandrashekhar S/O Narayan Malkhede v. Smt. Raijabai W/O Chudaman Ganer And 3 Others

903wp 1135.2018.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1135/2018 CHANDRASHEKHAR S/O NARAYAN MALKHEDE ..VS..

SMT. RAIJABAI W/O CHUDAMAN GANER AND OTHERS ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Court'

s or Judge'

s Order Coram, appearances, Court'

s Orders or directions and Registrar'

s order__________________________________________________________ Mr. A.H. Matetwar, Advocate for the petitioner Mr. A.R. Fule, Advocate for respondent no. 3 CORAM : AMIT B. BORKAR, J.

DATED : 21/09/2022 The legality and validity of the order dated 03.01.2017 is challenged by the decree-holder which rejects an application under Order I Rule 10 of the Code of Civil Procedure, 1908 (for short the "CPC") to implead third party as judgment debtors.

2.

The petitioner had filed suit for specific performance for enforcement of an agreement to sale with the averments that the petitioner had paid an amount of Rs.4,75,000/- towards the earnest amount. The said suit was partly decreed directing the judgment-debtors to refund an earnest amount of Rs.4,75,000/- alongwith interest at the rate of 18% per annum. For execution of the said decree, the petitioner filed Special Darkhast No. 145/2008. The Executing Court had issued warrant under Order XXI Rule 43 of the CPC in which, it was recorded that the judgment debtor does not have any movable SMGate

903wp 1135.2018.odt property. The third party had filed an application bearing MJC No. 413/2008 contending ownership of the suit property. The said application is still pending. Based on the application filed by the third party bearing MJC No. 413/2008, the decree-holder had filed an application before the Executing Court to implead them third party as judgment-debtors. By the impugned order, the Executing Court has rejected the application. The petitioner has, therefore, filed the present writ petition.

3.

On perusal of the impugned order, it appears that the Trial court had not passed decree against the third party. There is no decree in force against the third party. If that be so, the third party cannot be made judgmentdebtors in Execution proceedings of a decree not passed against them. There is no error of jurisdiction committed by the Executing Court by rejecting the application under Order I Rule 10 of the CPC.

4.

The petitioner shall have all rights to enforce the decree in accordance with law.

5.

With this clarification, the writ petition is dismissed. No costs.

6.

Pending civil application, if any, is also disposed of. JUDGE by SANDIP MAHADEV GATE Date:

2022.09.22 13:28:10 +0530 SANDIP MAHADEV GATE SMGate