Bombay High Court

MAHANANDA GANESH MENKUDLE AND OTHERSversusFAKIR MAHEMEUD SHAIKH AND OTHERS

Disposal: DISPOSED OFF
Bench: SIDDHESHWAR SUNDARRAO THOMBRE

Holding

Objections to the validity of a decree are not maintainable in execution proceedings and must be raised before the appropriate appellate court.

Summary

The petitioners filed a writ petition challenging the order of the 3rd Joint Civil Judge, Junior Division, Osmanabad, which had rejected their application under Order XXI Rule 97 of the Civil Procedure Code. They argued that Defendant No.3 had died before the decree was passed, making the decree a nullity, and therefore their objections should have been entertained in the execution proceedings. The trial court held that objections to the validity of a decree are not maintainable in execution proceedings and must be raised before the appropriate appellate forum. The High Court agreed, stating that the execution court's reasoning was proper and that the petitioners could raise their grounds before the appellate court. Consequently, the writ petition was dismissed without interference.

Issues considered

Whether objections to the validity of a decree can be raised in execution proceedings under Order XXI Rule 97 of the CPC
Whether the death of a party before the decree renders the decree a nullity

Legislation cited

Code of Civil Procedure, 1908

Subjects

decree validity
execution proceedings
Civil Procedure Code
Order XXI Rule 97
appellate jurisdiction

Judgment

2026:BHC-AUG:1799
1 973 WP 6020-2021.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

973 WRIT PETITION NO. 6020 OF 2021

MAHANANDA GANESH MENKUDLE AND OTHERS
VERSUS
FAKIR MAHEMEUD SHAIKH AND OTHERS

…
Mr. Shivprasad G. Jadhavar – Advocate for Petitioners
…

CORAM : SIDDHESHWAR S. THOMBRE, J.
DATE : 17.01.2026

PER COURT :
1. Heard learned Counsel for the petitioners.

2. By way of present petition, the petitioners challenge the order

dated 15.03.2021 passed below Exhibit-59 in Civil Misc. Application

No.132/2016 by the learned 3rd Joint Civil Judge, Junior Division,

Osmanabad, whereby the application filed by the petitioners under Order

XXI Rule 97 of the Civil Procedure Code came to be rejected.

3. Learned Counsel for the petitioners submits that defendant No.3

had already expired prior to the passing of the decree and that the

present petitioners are his legal heirs. On that ground, it is contended

that the decree itself is a nullity and therefore the objections raised by the

petitioners before the Executing Court ought to have been entertained.
2 973 WP 6020-2021.odt

4. The learned Trial Court, however observed that such objections

touching the validity of the decree are not maintainable in execution

proceedings and that it is for the petitioners to challenge the decree dated

18.03.2016 before the appropriate forum. The question regarding validity

of the decree and all consequential issues are required to be considered

by the appellate Court and not in the present proceedings. I am of the

considered view that reasons recorded by the Executing Court are proper

and warrant no interference by this Court, therefore, I am not inclined to

entertain the present petition.

5. However, it is clarified that the petitioners are at liberty to raise all

permissible grounds before the appellate Court.

6. The Writ Petition stands disposed of in above terms.

[ SIDDHESHWAR S. THOMBRE ]
JUDGE
Pooja Kale/

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