SMT.SHAKUNTALABAI WD/O MAHADEO DEKATE Vs. SMT. SUNDARABAI W/O SHANKARRAO PARATE
LAWS(BOM)-2017-12-93
HIGH COURT OF BOMBAY (AT: NAGPUR)
Decided on December 15,2017

Smt.Shakuntalabai Wd/O Mahadeo Dekate Appellant
VERSUS
Smt. Sundarabai W/O Shankarrao Parate Respondents

JUDGEMENT

ARUN.D.UPADHYE,J. - (1.) Rule. Rule made returnable forthwith. Heard finally by consent of learned counsel for the parties.
(2.) By this application, the applicants have prayed to quash and set aside the order dated 04/08/2016 passed by the 12 th Joint Civil Judge, Senior Division and Additional Chief Judicial Magistrate, Nagpur below Exh.19 in Special Civil Suit No.732/2015. The brief facts of the case are as under :-
(3.) The non-applicant has filed suit for partition and separate possession claiming 1/3rd share in the suit property against the applicants. During the pendency of the suit, the applicants have filed application under Order 7 Rule 11 (d) and Section 11 of the Code of Civil Procedure. The applicants have contended that the present suit filed by the non-applicant is not maintainable, as per the provisions of Order 7 Rule 11 (d) and Section 11 of the Code of Civil Procedure. It is further contended that the plaintiff has already filed Special Civil Suit No.1323/1995 against Mahadeo Mangal Dhakate and Smt.Laxmibai wd/o Damu Umredkar. According to them, Mahadeo expired in the year 1997 and pursis to that effect is filed in the Court. The non-applicant has not brought on record the legal heirs of Mahadeo Dhakate. The present suit is instituted on the very same grounds / pleadings and therefore, the application be allowed and the suit be dismissed as barred under Section 11 of the Code of Civil Procedure.;


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