03 Jul 2121

Improper application of the provisions of Order 41 Rule 5(3) of the Code of Civil Procedure, 1908 in exercise of discretion to the facts of the case results in quashing of the impugned order - Bombay High Court

Case : Devidas Laxman Navale v. Tahasildar, Sangamner and Ors. Writ Petition No. 4612 of 2021

Court : Bombay High Court

Bench : Justice Sandeep K. Shinde

Decided on : 03 Jul 2121

Relevant Statues

Articles 226 of the Constitution of India, 1950

Order 41 Rule 5(3) of Code of Civil Procedure, 1908

Brief Facts & Procedure History

1. The relevant seminal facts are that three suit properties one situated at village Velhale Tq. Sagmner; second at village Ghulewadi Tq. Sagmner and third at village Gunjalwadi Tq. Sagamner is in possession of the petitioner. The Partition suit bearing Regular Civil Suit No. 429 of 2009 instituted by Respondents No. 2 and 3 was decreed by the Court of Civil Judge, Senior Division, Sangmner. The decree was carried/ challenged in appeal bearing Regular Civil Appeal No. 43 of 2019 by the petitioner.

2. The Petitioner-defendant, resisted the suit contending that in the previous partition i.e. these three properties had fallen to his share. This defence was turned down by the Trial Court and decreed the suit. In appeal, against the partition decree, learned Appellate Court, in the exercise of its powers under Order 41 Rule 5(3) of Code of Civil Procedure, 1908 imposed conditions vide common order which is challenged before this Court.

The Issue(s) of the Case

Whether the Petitioner/appellant is entitled to quashing of the impugned order by the learned Appellate Court under Order 41 Rule 5(3) of Code of Civil Procedure, 1908?

The Observations of the Court

The Honourable Bombay High Court observed the following:

1. Critically analyzed Order 41 Rule 5(3) of Code of Civil Procedure, 1908 and opined that the decree appealed is a decree in partition suit which only decides the right of the ‘parties’ and share.

2. Further opined that the equities are adjusted at the stage of the final decree after taking into consideration the tentative or provisional partition scheme.

3. Based on the above opinions, the Court viewed that the learned Appellate Court incorrectly applied provisions of Order 41 Rule 5(3) of the Code of Civil Procedure, 1908 to the facts of the case.

4. Contemplated Order 41 Rule 5(1) of the Code of Civil Procedure, 1908 where it prohibits stay of execution of money decree unless the decretal amount is deposited or security furnished. In the instant case, the decree appealed was not a money decree.

5. Reliance was placed upon the case of Sihor Nagar Palika Bureau v. Bhabhulbhai Virabhan & Co., (2005) 3 SCC 1.

The Decision held by the Court

1. The Honourable Bombay High Court set aside the impugned order by the learned Appellate Court.

2. The Honourable Bombay High Court further opined that the Petitioner/appellant shall not create third party rights in the suit properties in the pending Civil Appeal and the process of partition shall go on but the handing over share in the properties is deferred till the decision in Regular Civil Appeal No. 43 of 2019.

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