Prayers For Partition & Separate Possession Can't Be Granted In Execution Proceedings: Bombay High Court

Justice Sandeep V. Marne while dismissing the writ petition held –

“…the objections appear to have been filed merely as a formality and the same was never prosecuted. Two years after satisfaction of decree was recorded by the executing court, Petitioners seems to have smelled an opportunity of re-opening the execution proceedings citing the pretext of non-decision of their objection, which they did not bother to prosecute for 14 long years. The closed execution proceedings cannot be permitted to be reopened for such indolent Petitioners, that too for decision of their objections which can be decided only in a suit”.

In a 1994 suit for specific performance of an agreement to sale, the defendants were directed to execute sale deed of the suit property for Rs. 3,68,750/-. Despite the decree, the defendants failed to execute the sale deed in favour of plaintiffs due to which the execution proceedings were filed. The current petitioners were not parties to the original suit but they were added as judgment debtors to the execution suit. In 2005, they filed objections claiming they have undivided share in the suit property and prayed for partition and separate share.

In the meantime, the decree was assigned twice and entire dispute was amicably resolved when sale deed was executed in favour of the third assignee. The executing court in 2019 passed an order stating that the decree is satisfied and the execution proceedings are closed. In 2022, the petitioners challenged the order on the ground that the executing court did not decide their objections.

Advocate Ashish Gatagat for the petitioners contended that their share in the suit property was admitted in the development agreement executed in favour of the second assignee. Hence, the executing court should have decided the objection instead of closing the proceedings. Therefore, he prayed for restoration of the execution proceedings.

Advocate Sanjay Kshirsagar for the respondent contended that the petitioners did not pursue the objections for 14 years and no relief can be granted in light of negligent conduct. He also said that the petitioner’s prayers in the objection application were in the nature of a fresh suit which could not have been decided in execution suit.

The court said that the prayers of the petitioners for partition and separate possession in the objection applications are of the nature of a fresh suit. Further, they did not pursue their objections before the executing court for 14 years.

“Perusal of prayers raised in the objection petitions would indicate that the same are in the nature of prayers which would be sought in a fresh suit. In execution proceedings such prayers for partition and separate possession could not otherwise have been granted. Such prayers can always be sought by the Petitioners by filing a separate suit…Petitioners were not parties to the suit and therefore a separate suit filed by them seeking partition and separate share may not be barred,” the court held.

The court also noted that advocate Gatagat was unable to answer whether petitioners or their advocates were present before the court when the 2019 execution order was passed. Advocate Kshirsagar claimed the petitioners never attended or prosecuted the objections before the executing court for 14 years.

Case no. – Writ Petition No. 4504 of 2022

Case Title – Hirabai Dattatray Mankar v. Dodke Associates through its Partner

Citation: 2023 LiveLaw (Bom) 64