Shri Pedro Antonio Fernandes and Others vs Shri James Fernandes alias James Francisco Fidelis Fernandes and Others

N.A. Britto, J.—Heard Shri Gaonkar, the learned Counsel on behalf of the petitioners who are the judgment debtors in Execution Application No. 11/2005 before the Court of Civil Judge, Junior Division at Margao. After a warrant dated 17/08/2007 was issued against the petitioners, it dawned upon them that they should now take a plea that they are mundkars and therefore approached the Mamalatdar with their application dated 7/11/2007, filed u/s 8(A) of Goa, Daman & Diu (Protection from Eviction) Act, 1975 and, thereafter, filed another application for temporary injunction dated 10/01/2008 and obtained an order for maintenance of status quo.

Respondents had filed R.C.S. No. 224/88/E for the eviction of the petitioners which was dismissed by the trial Court by judgment and decree dated 29/04/2000 but was decreed by the first Additional District Judge by judgment/order dated 24/06/2004. The second appeal preferred by the petitioners being Second Appeal No. 108/2004 came to be dismissed by order dated 13/04/2006.

The petitioners filed an application on 14/11/2007 in the said execution proceedings u/s 151 of CPC r/w Section 31(2), r/w Section 38 of the Goa, Daman & Diu Mundkars (Protection from Eviction) Act, 1975 stating that their mundkar case was pending before the Mamlatdar for adjudication and therefore the executing Court had no jurisdiction to proceed with the executing proceedings filed by the respondents (decree holders).

To support the proposition that the judgment debtors were entitled to raise a claim of mundkarship, even in execution proceedings and obtain a stay of the same, pending a decision of the mamlatdar, the petitioners had relied upon the cases of Baburao Vishnu Naik V/s. Ramchandra Vishnu Naik & Anr. (1989 (1) GLT 175), Shubha Kamat V/s. Vasu Naik (2001(1) GLT 3). The respondents relied upon the case of Rafeal Fernandes V/s. Terezinha Rodrigues (2007 (2) Bom. C.R. 477). On behalf of the petitioners, reliance has now been placed on Shantaram Babanie Xete Curtorkar & Anr. V/s. Vishnu Babani Xete Curtorkar & Anr. (1989 (2) GLT 167).

The learned executing Court refused to stay the execution proceedings observing that it could not go into the pleadings of the parties and this Court had declined to entertain their plea of mundkarship in S.A. No. 108/2004. Indeed this Court in deciding S.A. No. 108/2004 has held thus:

In my view, the defendants having not taken the plea specifically in the written statement but have taken a contrary plea of co-ownership of the suit premises, they cannot be permitted to raise it by way of argument either before the first appellate Court or before this Court. If this was the case of the defendants on the pleadings of the plaintiff herself, an issue of mundkarship arose, the defendants ought to have insist ed upon the framing of such an issue by proper pleadings. The defendants having not done so, in my opinion, they are not entitled to challenge the decree of eviction passed by the lower appellate Court.

This Court further held that:

Since the issue of mundkarship was not raised by way of proper pleadings, in my opinion, there is no merit in the submission of Mr. Lotlikar that the issue of mundkarship arises on the basis of the pleadings of the plaintiff herself.

The petitioners did not challenge the findings of this Court in the said S.A. No. 108/2004, which have become final. The learned trial Court had rightly distinguished the ratio of Baburao Vishnu Naik (supra) and Shubha Kamat (supra). In this case the plea of mundkarship was taken for first time in execution proceedings and it was held:

In my view, the learned counsel is entirely right in this submission and in my considered opinion, the word "suit" used in Section 32 of the Act has undoubtedly to be construed liberally so as to embrace not only a suit proper, but also an appeal or execution proceedings. I am supported in this view by the decision of the learned Single Judge of the Karnataka High Court in Suman''s case, inasmuch as the learned Judge, relying on the observations of Mulla in his commentary on the Civil Procedure Code, observed that the expression "suit" includes execution proceedings. A different view will definitely give cause to some absurd situations. This being so, the learned Judge after having found that prima facie the objections raised by the respondents appear to be valid, ought to have framed an issue as to whether or not the respondents are mundkars and ought to have stayed the proceedings for the purposes of a declaration in that respect being obtained from the concerned Mamlatdar.

Rightly or wrongly, the issue of mundkarship has been set at rest by this Court in the said judgment dated 13/04/2006 in S.A. No. 108/2004 which has attained finality and as such the ratio of Shantaram Babanie Xete Curtorkar & Anr. (supra), which is on the same footing as the other two cases including Baburao Vishnu Naik referred to herein above, would not be applicable to the facts of the case at hand. In the above view of the matter, the learned executing Court could not be faulted in not staying the proceedings so as to allow the petitioners to raise an issue of mundkarship before the Mamlatdar. There is no substance in this petition, therefore, the same is hereby dismissed.