LAWS(BOM)-2011-12-13

USHADEVI RAJARAM NIMBALKAR Vs. RATNAKAR BANK LTD

Decided On December 21, 2011
Ushadevi Rajaram Nimbalkar Appellant
V/S
The Ratnakar Bank Limited Respondents

JUDGEMENT

(1.) Rule. With the consent of the parties made returnable forthwith and heard.

(2.) The above Petition takes exception to the Order dated 2462011 passed by the Learned Civil Judge Junior Division, Kolhapur, by which Order, the Misc Application No.1351 of 1980 came to be disposed of by observing that since the objector is dead, the objections are "filed" for want of the objector.

(3.) It is not necessary to burden this order with unnecessary facts. However, suffice it to say, that there is a money decree passed in favour of the Bank which is dated 2561974. The execution proceedings for executing the said decree were set in motion and the property in question which was mortgaged was permitted to be auctioned. Pursuant to the said auction, the Respondent Bank itself purchased the said property as there was no other buyer. On 351980 the Respondent Bank filed Misc Application No.1351 of 1980 before the executing Court under Order 21 Rule 95 of the Civil Procedure Code for possession of the property on the basis of the sale certificate. At the relevant time since the Judgment Debtor Rajaram Dadasaheb Nimbalkar had died, as a consequence his son Dhaiyrasheel Rajaram Nimbalkar and daughter Supriya Rajaram Nimbalkar were brought on record as heirs and legal representatives of deceased Judgment Debtor Rajaram Dadasaheb Nimbalkar. The said Dhaiyrasheel Rajaram Nimbalkar filed his objection to the said Misc Application No.1351 of 1980 vide Exhibit 50 thereby opposing the said Application on the grounds mentioned therein. A separate objection application was also filed at Exhibit 75 by the Petitioner Nos.1 and 3 herein and Supriya Nimbalkar adopting the objections raised by Dhaiyrasheel Rajaram Nimbalkar. The Executing Court by Order dated 671991 was pleased to dismiss the said Misc Application No.1351 of 1980 filed by the Bank on the ground that the property was HUF property and the objectors were still minors and their rights were required to be protected. The Respondent Bank challenged the aforesaid order dated 671991 by filing a Civil Revision Application No.778 of 1991 in this Court. During the pendency of the the said Civil Revision Application, Dhaiyrasheel Rajaram Nimbalkar also died, as a consequence of which Mayura Dhaiyrasheel Nimbalkar his wife was brought on record of the Civil Revision Application. this Court by a consent Order dated 762001 disposed of the Civil Revision Application by setting aside the order dated 671991 and the executing Court was directed to treat the objections filed vide Exhibit 50 and Exhibit 75 as raised under Order 21 Rule 97 of the Civil Procedure Code. The Executing Court was directed to decide the said objections on their own merits.