1/6 12-WP-1078-24.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, AT NAGPUR. WRIT PETITION NO.1078 OF 2024 RAMKUMAR S/O JAGDISHPRASAD VERMA VS RAMLAL S/O DHARMA RAMTEKE AND ANOTHER - -- - -- -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri D. H. Sharma, Advocate for petitioner. Shri S. D. Malke, Advocate for respondent No.1 Shri U. A. Gosavi, Advocate for respondent No.2. CORAM : NANDESH S. DESHPANDE, J. DATED : 2nd September, 2026 P. C. Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel for the parties. The present petition challenges order dated 12/12/2023 passed by the Civil Judge Senior Division, Nagpur in Spl. Darkhast No.137/2016. By way of said order, the trial Court has allowed the application filed by the respondent No.2 herein and order of attachment of sale of apartment No.F-01 is recalled and set aside. 2. Facts as can be seen from the petition are as under : Reg. Civil Suit No.894/2013 was filed by the respondent No.1 herein against the present petitioner for declaration and permanent injunction. As can be seen from 2026:BHC-NAG:11853 2/6 12-WP-1078-24.odt the averments in the plaint, the subject matter of the suit was Apartment Nos.F-02 and F-04 of a building namely ‘Pramila Abodes’. During the trial, compromise was reached and a Compromise Pursis was filed on 18/09/2014. As per Clauses-5 and 6 of the Compromise Pursis it was agreed between the parties that terms of consent shall have the effect of decree executable by the Court of Law. It was also agreed that the original plaintiff shall pay an amount of Rs.23,00,000/- within one week. If there is default in payment, the amount will carry interest. Since according to the petitioner, the decree was not complied with, he filed execution proceedings bearing Spl. Darkhast No.137/2016. In the said execution proceedings, an order of attachment of property of the present respondent No.2 was passed. Since the property sought to be attached was of respondent No.2, he filed an application under Section 47 of the Code of Civil Procedure, 1908 for releasing the said property from attachment. The said application is allowed by the impugned order. 3. I have heard Shri D. H. Sharma, learned counsel for 3/6 12-WP-1078-24.odt the petitioner and Shri U. A. Gosavi, learned counsel for respondent No.2. Shri Sharma points me out that the property in question is gifted by present respondent No.1 to respondent No.2. As far as the impugned order is concerned, he submits that the order is unsustainable in law since according to him application under Section 47 of the Code itself was not maintainable. In support, he relied on the judgment of Punjab and Haryana High Court in Jagdish Lal and anr. vs. Surender Kumar and ors. 1985 AIR (Punjab and Haryana) 76. 4. Per contra, Shri U. A. Gosavi, learned counsel for respondent No.2 supported the impugned order. He points me out that the subject matter of the suit was only Apartment Nos.F-02 and F-04 and the said suit bearing No.894/2013 was filed on 30/11/2013. He also submits that admittedly Apartment No.F-01 is gifted to him by respondent No.1 on 17/11/2011 i.e. much prior to filing of the suit. He therefore submits that the Executing Court was right in releasing the attachment. He thus supported 4/6 12-WP-1078-24.odt the impugned order. Reliance is placed on the judgment in N. V. Batla Indsutries vs. Tile International and ors. 2013 (5) Mh.L.J. 128. 5. Rival contentions fall for my consideration. 6. The only short question which arises in the present petition is whether a property which was admittedly not the subject matter of the earlier suit can be a subject of attachment, more particularly, when ownership did not vest with the parties to the suit therein and was transferred much before filing of the suit ? The date of filing of the suit and the date of execution of gift deed is not disputed. As can be seen from paragraphs 11 and 12 of the impugned order, the Executing Court has categorically recorded a finding based on fact that gift deed has been registered on 17/11/2011 which was only in respect of Apartment No.F- 01. This fact assumes significance as Apartment No.F-01 was never the subject matter of the suit, leave apart that the suit was filed only for recovery. Even if pleadings are to be construed liberally, only Apartment Nos.F-02 and F-04 were the subject matter of the suit. Therefore the 5/6 12-WP-1078-24.odt attachment of Apartment F-01 was totally unsustainable. The trial court has correctly appreciated the facts on record and released the property from attachment. 7. As far as judgment relied by the counsel for the petitioner is concerned, it would not be applicable and the reliance placed is entirely misconceived. Section 47 of the Code is a substantive provision which provides that the parties including a person whose property is being attached can file an application and raise objection. In addition to this, as can be seen from the application filed by the respondent No.2 that same came to be filed under the provisions of Section 47 and other relevant provisions of the Code. Suffice it to say that the objection raised by the petitioner is entirely misconceived and misplaced. No party can be non-suited for filing an application on incorrect provisions of law more so when there is substantive merit in the application. The judgment therefore cannot be relied upon. 6/6 12-WP-1078-24.odt 8. As far as judgment of this Court in N. V. Batla Industries (supra) is concerned, this Court has categorically held that third person’s property just cannot be attached only on asking by the decree holder. The entire exercise for attachment by the Executing Court is misconceived and proceeds on wrong interpretation of law. The impugned order does not show any perversity warranting interference in supervisory jurisdiction. The petition being misconceived is rejected. 9. Rule stands discharged. Writ Petition is disposed of accordingly. No order as to costs. (NANDESH S. DESHPANDE,J.) Asmita Signed by: Smt. Asmita A. Bhandakkar Designation: PS To Honourable Judge Date: 08/09/2026 10:10:57