AMAR VIJAY JADHAVversusSUBARAV BALARAM PATIL AND ORS

2026:BHC-AS:35215

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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION
                                 WRIT PETITION NO.10825 OF 2026
                                             WITH
                              INTERIM APPLICATION NO.6535 OF 2026

            Amar Vijay Jadhav                                    ...   Petitioner
                 versus
            Subarav Balaram Patil and Ors.                       …     Respondents

            Mr. Surel Shah, Sr. Advocate with Mr. Sunitha Nayak, for Petitioner.
            Mr. Kamlesh Ghumre with Ms. Sonali Jadhav, for Respondent No.1.
            Mr. Vishal Kanade with Mr. Digvijay Sarangdhar, Ms. Tanaya Patankar, for
            Respondent Nos.2 to 4.

                                CORAM:      N.J.JAMADAR, J.

                                DATE :      24 AUGUST 2026

            ORDER :

            1.      Heard the learned Counsel for the parties.

            2.      This Petition calls in question the legality and propriety of the order

            dated 23 July 2026 passed by the Executing Court on an application preferred

            under Order XXI Rule 30 and 31 of the Code of Civil Procedure, 1908,

            whereby the Executing Court has appointed an Advocate – Commissioner to

            execute a decree and to do all acts, things and deeds including execution of

            required deeds and documents for and on behalf of judgment debtors,

            represent judgment debtors before all authorities, including LIC Housing

            Finance Ltd., for the purpose of transfer of the suit flat in the name of the

            decree holder and give effect to the decree in SCS No.480 of 2023 (SCS



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No.162 of 2021).

3.    Respondent No.1 instituted a suit against Respondent Nos.2 to 4

(Defendant Nos.1 to 3) and the Petitioner – Defendant No.4 for specific

performance of the contract of sale of the suit flat. On 9 November 2023, a

consent decree was passed in the said suit.

4.    As the Defendants allegedly committed default in compliance with the

consent decree, the Plaintiff gave a notice and upon failure of the Defendants

to comply with the demand in the notice, instituted the execution proceedings.

5.    The Petitioner (D4) instituted SCS No.50 of 2026 challenging the

consent decree and sought diverse reliefs of declaration, cancellation and

injunction.   The Petitioner also filed an application seeking stay to the

execution of the decree, in view of the pendency of the said suit.

6.    Respondent No.1 – decree holder,        filed an application purportedly

under Order XXI Rule 30 and 31 seeking directions for execution of the

consent decree. The said application was resisted by the judgment debtor.

7.    By the impugned order, the learned Civil Judge repelled the objections

and directed appointment of the Court Commissioner to do all the acts

necessary for the execution of the instruments and transfer of the suit flat in

favour of the Plaintiff in accordance with the terms of the consent decree.

8.    Mr. Shah, learned Senior Advocate for the Petitioner, submitted that,

while the application preferred by the Petitioner seeking stay to the execution


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of the decree under the provisions of Order XXI Rule 26 awaited decision, the

Executing Court could not have passed the impugned order appointing the

Court Commissioner giving unbridled powers. The decree holder could not

have invoked the provisions contained in Order XXI Rules 30 and 31 of the

Code, as those provisions were not at all attracted in the facts of the case at

hand. In any event, there was no privity of contract between the Plaintiff and

Defendant No.4, and till the obligations to pay off the Defendant No.4 were

not discharged, the decree could not have been executed qua Defendant

No.4. Thus, the impugned order warrants interference. Reliance was placed

by Mr. Shah on the judgment of the Supreme Court in the case of Pawan

Kumar Arya and Ors. V/s. Ravi Kumar Arya and Ors.1.

9.       I have carefully considered the submissions canvassed by Mr.Shah, in

the light of the material on record.

10.      Relevant clauses of the Consent Terms read as under :

                “2.      It is agreed by and between the parties that the
                Defendant herein shall sale and transfer clear and
                marketable title of the suit property free from any
                encumbrances to and in favour of the Plaintiff herein for total
                lump sum consideration of Rs.1,80,00,000/- (Rupees One
                Crore Eighty Lakhs). The Defendants do hereby admit and
                acknowledge the receipt of Rs.1,10,00,000/- (Rupees One
                Crore Ten Lakhs) only towards part consideration of the said
                flat from the Plaintiff, and discharge the Plaintiff from the

1    (2020) 15 SCC 190

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      same (ledger extract of the same attached as Exhibit A).
      3.     It is agreed by and between the parties that the
      Plaintiff shall pay the consideration of Rs.25,00,000/-
      (Rupees Twenty Five Lakhs only) on 09.11.2023 vide
      Cheque No.000142 A/c No.000501690212 with ICICI Bank
      to the Defendant No.1 and balance consideration of
      Rs.45,00,000/- (Rupees Forty Five Lakhs) at the time of
      execution and registration of Deed of Transfer and
      Assignment, which is agreed to be executed within two years
      from today.
      4…….
      5.     It is agreed by and between the parties that the
      Agreement dated 31/03/2021 executed by the Defendant in
      favour of Mr. Amar Jadhav (Defendant No.4), which is
      registered in the office of Sub-Registrar Thane – 11 at Sr.
      No.5073/2021 shall be got cancelled by the Defendants
      herein by executing a Deed of Cancellation which shall be
      duly registered with the competent Sub-Registrar of
      Assurances. All the parties herein are aware that Mr. Amar
      Jadhav (Defendant No.4) has availed a loan towards
      purchase of the said flat from LIC Housing. After refund of
      entire consideration paid towards the said Flat to Mr. Amar
      Jadhav, he will obtain NOC from LIC Housing to cancel the
      said Agreement dated 31/03/2021. It is hereby agreed and
      clarified that entire responsibility of repayment of the amount,
      if any, received by the Defendants from Mr. Amar Jadhav
      (Defendant No.4) shall be that of the Defendants herein. It is
      further clarified that the Plaintiff herein shall not be held liable
      or responsible for the same in any manner whatsoever.”




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11.    Evidently, the parties had agreed that the Agreement dated 31 March

2021 executed by the co-Defendants in favour of Defendant No.4 should be

cancelled by the Defendants by executing a Deed of Cancellation. Defendant

No.4 was to obtain NOC from LIC Housing to cancel the said Agreement after

refund of consideration to him. However, the entire responsibility of payment

of the amount received by the co-Defendants to Defendant No.4 was to be

that of the Defendants and the Plaintiff was not liable and responsible in any

manner whatsoever.

12.    The Executing Court has explicitly recorded that the Plaintiff paid further

consideration of Rs.25 Lakhs as agreed, ( in addition to the consideration of

Rs.1,10,00,000/- which was duly acknowledged in the consent terms) and

had shown willingness to pay the balance consideration as well.              Thus,

nothing more was to be done by the decree holder to perform his reciprocal

promise.

13.    With the aforesaid clarity on facts, if the submissions on behalf of the

Petitioner are apprised, the institution of the separate suit i.e. SCS No.50 of

2026, to assail the legality and validity of the consent decree was in teeth of

the provisions contained in Order XXIII Rule 3-A of the Code. In view of the

decision of the Supreme Court in the case of Triloki Nath Singh V/s.

Anirudh Singh (deceased), through legal heirs and Ors. 2, such a suit is


2   AIR 2020 SC 2111

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clearly barred by the provisions contained in Order XXIII Rule 3-A.

Resultantly, the application under the provisions contained in Order XXI Rule

29 of the Code, premised on the pendency of the said suit was also

misconceived. At any rate, it was not the case that the Defendant No.4 had

succeeded in obtaining any relief in the said suit qua the decree which was

put to execution.

14.   Secondly, the objection to the execution of the decree premised on

default in refund of the consideration allegedly paid by the Defendant No.4 to

the other co-Defendants, also does not merit countenance as the parties had

agreed that the liability to refund the consideration would be that of the

Defendants only, and the Plaintiff shall not be liable for any default therein.

15.   In regard to the recovery of the said amount, the consent decree may

operate as a decree in favour of Defendant No.4 qua Defendant Nos.1 to 3.

Defendant No.4 could legitimately enforce his remedies against Defendant

Nos.1 to 3 on the basis of the stipulation in the consent terms, but Defendant

No.4 has no right to resist the execution of the decree having expressly

consented for the transfer of the suit flat in favour of the Plaintiff and

cancellation of the agreement executed by Defendant Nos.1 to 3 in his favour.

16.   The decision in the case of Pawan Kumar Arya and Ors. (supra), has

no application to the facts of the case at hand, as in that case the Supreme

Court observed that both the parties to the consent terms / consent decree


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                      are required to fully comply with the terms of settlement / the consent terms

                      and the consent decree. One party cannot be permitted to say that portion of

                      the settlement which is in their favour be executed and/or complied with and

                      not the other terms of the settlement / consent terms / consent decree.

                      17.      This is not the case at hand. As noted above, the Plaintiff has complied

                      with his part of the agreement and, under the consent terms, the parties had

                      explicitly agreed that the liability to refund the consideration parted with by

                      Defendant No.4 would be that of rest of the Defendants only, and the Plaintiff

                      was specifically insulated from the consequences of default in the refund fo

                      the said amount by the rest of the Defendants.

                      18.      In the aforesaid view of the matter, the learned Civil Judge cannot be

                      said to have committed any error in passing the impugned order.

                      19.      Thus, the Writ Petition stands dismissed.

                      20.      In view of the dismissal of the Writ Petition, Interim Application No.6535

                      of 2026 also stands disposed.




                                                                           ( N.J.JAMADAR, J. )




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Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 27/08/2026 19:29:44