(902) WP 78.2026

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Sonam

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 78 OF 2026

Mr. Santan E. Cardozo,

Son of late Evaristo Cardozo,

Aged 78 years, married,

Business,

Resident of Florida-2,

3

rd

Floor, Opp. Krishna Mandir,

Pajifond, Margao, Goa. ... Petitioner

Versus

1. M/s Venus Agents and Investors Association

Having its registered office at 2

nd

Floor,

Khwaja Manzil, Opp. Taxi Stand,

Mapusa, Bardez, Goa.

Through its:

i. President Milind Madhukar Bhende

ii. Secretary Abhijit Shivanand Sawant

Acting on behalf of all Agents and Investors,

including Shareholders of Redeemable Preferences

Shares in the Company Venus Life Marketing India Ltd.

2. John J. Pacheco,

Major of age,

R/o House No. 46/B,

Seraulim, Cuncolim,

Colva, Salcete, Goa.

2026:BHC-GOA:178

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3. Mrs. Maria Mendes,

Major of age,

R/o H. No. 225, Seraulim,

Verna, Goa.

4. M/S VENUS LIFE MARKETING (I) LTD,

A deemed Public Limited Company

Having its registered office at

208, Kukreja Centre, 2

nd

Floor,

“c” WING, Sector-11,

C. B-D, Bellapur,

Navi Mumbai 400614

And Branch Office at 6

th

Floor,

Dempo Towers,

Patto Plaza Complex,

Panaji, Goa.

Through its

a. Managing Director

Shri. Santosh Shashikant Dabholkar

Residing at Block No. 321,

Tidal Housing Society,

Sector 20, Plot 6 Koper Kharirane,

Navi Mumbai.

b. Director

Shri. Shashikant Pandit Ahire

Block 19/326, Gr. Floor,

BPT Raynold Colony,

Tejas Nagar, Wadala E

Mumbai 400037.

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c. Director

Ramakant Shashikant Dabholkar,

Residing at Block No. 321,

Tridal Housing Society,

Sector 20, Plot 6, Koper Kharirane,

Navi Mumbai. ... Respondents

Mr. Gaurish Agni with Mr. Kishan Kavlekar and Ms. Laxmi

Sawant, Advocates for the Petitioner.

Mr. Arun Kumar Pandey- Licensee, present in person.

Mr. S. M. Singbal, Advocate for the Respondent Nos. 2 and 3.

CORAM:- VALMIKI MENEZES, J.

DATED :- 3

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ORAL JUDGMENT

1. Registry to waive office objections and register the matter.

2. Heard learned Advocates for the parties.

3. Rule. Rule is made returnable forthwith; at the request of

and with the consent of learned Advocates for the parties, the

matter is finally heard and disposed of. Learned Advocate Mr.

Mr. Kishan Kavlekar waives service on behalf of the Petitioner

Mr. Arun Kumar Pandey, Advocate and Licensee of the suit

premises present in person waives service of notice and learned

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Advocate Mr. S. M. Singbal waives service on behalf of

Respondent Nos. 2 and 3.

4. This petition impugns order dated 17.02.2023 passed by

the Court of Civil Judge Senior Division at Merces on an

application at Exhibit D-55 filed under Order 21 Rule 58 CPC,

raising objections to the execution of the money Decree dated

17.04.2007, obtained by Respondent No.1 in Special Civil Suit

No. 46/2006/B(New).

5. The two main arguments raised by the Petitioner,

represented by learned Advocate Mr. Gaurish Agni, are the

following:

(i) That this Court, by its order of 09.10.2017, passed in

Writ Petition No. 745/2017 had set aside an earlier order

passed by the Executing Court dated 31.03.2016,

dismissing the objections of the Petitioner without

conducting any inquiry; that despite directions contained

in this Court’s order dated 09.10.2017, in which the

Executing Court was directed to decide the objections, the

Executing Court has failed to conduct any inquiry or to

hear the application afresh and has dismissed the

objections without deciding them on their merits.

(ii) That the Executing Court has erroneously relied upon

certain findings and the Decree passed in Regular Civil

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Suit No. 93/2012/D, which was filed at the behest of the

Petitioner, to hold that the Petitioners rights have been

determined in that Decree, and no purpose would be served

in holding any further inquiry or fresh investigation in the

Execution Proceeding to determine the Petitioner’s right to

object to the Decree.

6. Certain facts, relevant for the decision of this petition,

would required to be referred to:

(a) Special Civil Suit No. 69/2004/A(Old), was filed by

Respondent No. 1 (M/s Venus Agents and Investors

Association), against one Venus Life Marketing India Ltd.,

Defendant No. 1 in that suit; the Plaintiff in that suit is

Respondent No. 1 in the present petition. The Decree was

obtained by the present Respondent No. 1 against M/s

Venus Life Marketing (I) Ltd. (Respondent No. 4) for an

amount of Rs. 3,47,82,239/- with interest thereon at 11%

per annum from the date of maturity of certain share

certificates till the actual payment. That Decree was sought

to be executed against the said M/s Venus Life Marketing

(I) Ltd. (Respondent No.4) in Execution Proceeding No.

37/2007/B, before the Civil Judge Senior Division at ‘B’

Court, Panaji.

(b) It is the matter of record that the Executing Court by

order of 31.03.2016, directed the attachment of the suit

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property in execution of the money Decree obtained by

Respondent No. 1. This Execution Proceeding came to be

objected to by the present Petitioner, who filed an

application dated 14.09.2016 under Order 21 Rule 58 CPC

(Exhibit D-55), claiming that they had an Agreement dated

12.02.2004 with the said M/s Venus Life Marketing (I) Ltd.

(Respondent No. 4 and Judgment Debtor), under which

they claimed that they had made full payment for purchase

of the suit premises with the consent of the original

developer M/s V. S. Dempo & Co. Pvt. Ltd. It was further

the case of the Petitioner/objector that he had filed Regular

Civil Suit No. 93/2012/D on 07.07.2012, in which the

Petitioner sought a Decree declaring him to be the owner

in possession of the suit premises; in the same suit the

Petitioner had also sought reliefs of mandatory injunction

against Defendant No. 2 M/s V. S. Dempo & Co. Pvt. Ltd.

to execute a Deed of Sale/ Conveyance in favour of the

Petitioner and for permanent injunction.

(c) This application was heard, and without conducting

any inquiry, the Executing Court dismissed the objections

of the Petitioner on 06.06.2017. The order of 06.06.2017

came to be challenged before this Court in Writ Petition

No. 745/2017, which petition came to be allowed by order

of 09.10.2017. In that order, this Court set aside the order

dated 31.03.2016, passed by the Executing Court and

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directed the Executing Court to implead the Liquidator,

claimed by Respondent No. 1 to have been appointed

under a liquidation proceeding to dissolve M/s Venus Life

Marketing (I) Ltd. In addition, this Court directed the

Executing Court to decide the objections dated 14.09.2016,

filed by the Petitioner afresh, after hearing the parties and

to decide the matter in accordance with law and within a

period of three months from receipt of this Court’s order.

In addition, put the Petitioner to terms that, during the

pendency and until the decision on all the objections, the

Petitioner will not create any third party interest by way of

sale, lease or otherwise, thereby in the suit premises.

(d) In the meantime, the Petitioner’s Regular Civil Suit

No. 93/2012/D came to be dismissed on 13.06.2022.

Against this Decree, the Petitioner filed the First Appeal on

22.07.2022, which was registered as Regular Civil Appeal

No. 62/2022; this Appeal came to be dismissed for default

on 08.06.2023 and after which a restoration application

along with the application for condonation of delay was

filed on 28.12.2023, and is pending disposal; next date

being fixed on 12.03.2026. The application for

condonation of delay and for restoration of the Appeal is

numbered as Civil Miscellaneous Application No.

40/2024, and is pending before the Court of District Judge-

1 & Assistant Sessions Judge at Merces.

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(e) In addition to all these proceedings pending before

various Courts, the learned Counsel for the respective

parties have brought to my notice that Respondent No. 1

has in the meantime filed Regular Civil Suit No.

93/2013/D, before the Court of Civil Judge Junior Division

‘D’ Court at Merces, challenging an Agreement dated

08.07.2010, which is a registered Agreement for

Assignment of Rights with the Possession, between

Respondent No. 4 (M/s Venus Life Marketing (I) Ltd.) in

favour of the Petitioner; in this suit, Respondent No. 1 had

pressed for an interim relief of temporary injunction to

restrain the Petitioner from using the suit premises or

transferring the same or creating any third party rights,

which came to be dismissed on 06.05.2016, and a

challenge to this order came to withdrawn in view of the

attachment order passed by the Executing Court. This suit

is pending trial before the Civil Court.

(f) In addition to these proceedings, Respondent No. 1

claimed that M/s Venus Life Marketing (I) Ltd. has sought

voluntary winding up of the company, and Respondent

No. 1 claims, in its defence in the Petitioner’s Regular

Civil Suit No. 93/2012/D, that in view of a resolution of

the share holders of that company, resolving to voluntary

wind it up, the suit itself would not be maintainable in

view of the provision of Section 490 of the Companies Act;

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this defence was taken up on the premise that the Petitioner

could not enter into any agreement in view of the aforesaid

provisions of law.

7. In the light of the aforementioned undisputed facts, learned

Advocate Mr. Singbal, appearing for Respondent No. 1,

advanced the following submissions:

(i) That the provisions under Order 21 Rule 58 CPC do

not contemplate that in all cases a full scale inquiry is

required to be held; he submits that, it is only when the

objector makes out a case of an independent title in its

objections to the Decree, that the Court is obliged to

proceed to record an inquiry in terms of Rule 98 to Rule

105 of Order 21 CPC and not otherwise. He has submitted

that in the Decree dated 13.06.2022, passed in the

Petitioner’s Regular Civil Suit No. 93/2012/D, a specific

finding has been given by the Court that the Petitioner has

not been able to prove that his Agreement is with the

consent of the original developer i.e. M/s V. S. Dempo &

Co. Pvt. Ltd. nor has the Petitioner been able to prove his

possession of the premises, or that he was inducted in the

suit premises pursuant to the agreement under which he

claims enforcement in the suit. It was further submitted

that since there is a categorical finding of the Civil Court,

in the Petitioner’s suit, negating the title claimed by the

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Petitioner, the issue as to the Petitioner’s title has been

decided by the Court and therefor the Executing Court

could not be called upon to decide whether the Petitioner

has a title, as claimed by him in the objections filed under

Order 21 Rule 58 CPC.

(ii) It was further contended that the shareholders of the

M/s Venus Life Marketing (I) Ltd. having passed a

resolution subject to voluntarily winding up of that

company, the provision of Section 491 of the Companies

Act 1956, would be applicable, under which the Petitioner

was precluded from entering into any Agreement with any

third party with regard to the suit premises; it was

contended that it was more so since the resolution of the

shareholders which is dated 18.08.2004 resolves to wind

up the company and to appoint a liquidator who was

named in the resolution.

8. I have heard the rival submissions of the parties, and have

gone through the records of the case.

9. At the outset, what needs to be first considered is the

directions passed by this Court in its order of 09.10.2017 passed

in Writ Petition No. 745/2017. That was an order passed in the

light of the fact that no inquiry was conducted by the Executing

Court before passing of the order whilst dismissing the

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application under Order 21 Rule 58 CPC at Exhibit D-55 before

the Executing Court. This Court, in its Judgment dated

09.10.2017 has recorded the statement of the Petitioner that,

during the pendency and whilst deciding all objections before

the Executing Court, no third party interest would be created,

and thereafter it set aside the impugned order and directed the

Executing Court to decide the objections afresh after

impleading the Liquidator appointed pursuant to a Resolution

passed by shareholders of M/s Venus Life Marketing (I) Ltd.

After the matter was taken up afresh before the Executing

Court, has not heard the application on its own merits, and

instead has considered the Judgment and Decree passed in the

Petitioner’s suit bearing Regular Civil Suit No. 93/2012/D,

which by then came to be dismissed; the Executing Court has

then considered the findings in the Decree passed in the

Petitioner’s suit, that the Petitioner had failed to prove his rights

under agreement dated 08.07.2010. The Executing Court also

takes note of the findings in that Decree that the Petitioner had

not shown any right to the attached suit premises.

Consequently, the Executing Court dismissed the application

without entering into its merits or holding any preliminary

inquiry on the title set out by the Petitioner.

10. The Executing Court had obviously not considered the fact

that the Decree passed in the Petitioner’s suit was pending an

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Appeal before the District Court, even though that Appeal may

have been dismissed for default, and a restoration application

was pending before the District Court. The fact remains that if

the Appeal was to be restored or thereafter, if the Petitioner was

to succeed in his Appeal, the proceeding in the execution before

the Trial Court would take a completely different complexion.

The Executing Court had to therefore either arrive at its own

independent conclusion as to the title set up by the Petitioner in

its application under Order 21 Rule 58 CPC or might have

chosen to wait for the outcome of the Appeal against the Decree

dismissing the Petitioner’s suit. Whichever way the Executing

Court looked at it, it had to, independent of the findings,

rendered by the Civil Court in Regular Civil Suit

No.93/2012/D. come to its conclusion on the Petitioner’s title

to the suit property. This is the first infirmity I find in the

passing of the impugned order. This is apart from the fact that

the Executing Court had to at least conduct some preliminary

inquiry to conclude that the title set up by the Petitioner was

without any basis. Consequently, on this count alone, the

impugned order would have to be quashed and set aside.

11. Apart from this issue, even if I assume that the Executing

Court, could have examined the findings rendered by the Civil

Court in the Petitioner’s suit, the fact remains that one of the

finding rendered in that suit was that Respondent No. 1 had not

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proved that M/s Venus Life Marketing (I) Ltd. had actually

undergone the process of liquidation and a liquidator had infact

been appointed by resolution of the shareholders. This was a

specific issue raised in that suit and answered against the

Respondent no. 1. Even going by this finding, the question

whether the Petitioner’s Agreement dated 08.07.2010 was

passed in contravention of provisions of Section 491 of the

Companies Act, could not been answered at that stage since, in

any case, the matter has been pending in Appeal before the

District Court.

12. Consequently, for the reasons stated above, the impugned

order dated 17.02.2023 is quashed and set aside. The matter is

remanded back to the Executing Court that is the Court of Civil

Judge Senior Division at Merces dealing with the Special

Execution Proceeding No. 37/2007/B, with direction for the

Executing Court to examine the application at Exhibit D-55

under Order 21 Rule 58 CPC; it is for the Executing Court to

decide whether it would await the outcome of Civil

Miscellaneous Application No. 63/2023/B or RCA No.

62/2022, before the District Judge-1, or whether it would

conduct its own inquiry into the application and conclude

whether the Petitioner has any right to object to the Decree.

13. Considering that a lot hinges upon the decision in the Civil

Miscellaneous Application No. 63/2023/B and RCA

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No.62/2022 pending before the District Judge-1 at Merces, I

deem it appropriate to direct the District Judge-1 dealing with

Civil Miscellaneous Application No. 63/2023/B and RCA No.

62/2022 to dispose of the application for condonation of

delay/restoration of the Appeal/RCA No. 62/2022 which is now

listed on 12.03.2026, by 31.05.2026. The restoration

application, which is filed along with Civil Miscellaneous

Application No. 63/2023/B, shall be registered separately but

heard along with Civil Miscellaneous Application No.

63/2023/B for condonation of delay and be decided on the same

date.

14. Considering that issues raised in Regular Civil Suit No.

90/2013/D, which is pending before the ‘D’ Court at Merces,

are directly connected with execution proceeding no.

37/2007/B, which is pending before ‘B’ Court at Merces, I

deem it appropriate to exercise powers under Section 24 CPC

and to transfer the Regular Civil Suit from ‘D’ to ‘B’ Court of

Civil Judge Senior Division ‘B’ Court, who shall as far as

possible take both these matters simultaneously or on the same

date.

15. It has been brought to my notice that despite this Court’s

direction to the Petitioner, not to create any third party right to

the present suit property, the Petitioner has entered upon three

consecutive Agreements for Leave and Licence with Advocate

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Mr. Arun Kumar Pandey, who is present in the Court today, last

of such Agreement for Leave and Licence, which is placed

before me expired on 31.12.2025, though the licensee

continues to occupy the premises as on today. Mr. Pandey, who

is present in the Court is also appraised of the fact that since he

received notice from the Executing Court in October, 2025, he

has not been paying licence fees to the Petitioner, considering

the controversy in the petition. In this fact, I deem it appropriate

to permit Mr. Pandey to pay the pending licence fee from

October, 2025 until the premises is vacated. Mr. Pandey makes

a statement that he will vacate the said suit premises by

31.03.2026. This statement is accepted as an undertaking to this

Court. The licence fees shall be paid directly to the Petitioner.

16. On Mr. Pandey vacating the suit property, the Petitioner

shall not create an encumbrance of any nature in the suit

premises whether by transfer or by inducting any person under

licence thereunder. The suit premises to be kept close until

disposal of Execution application or Regular Civil Appeal No.

62/2022.

17. For the foregoing reasons, the petition is allowed, and the

impugned order dated 17.02.2023 is quashed and set aside, and

the matter remanded back to the Executing Court to follow

directions stated in Paragraph No.12 above.

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Regular Civil Suit No. 90/2013/D, which is pending before

the ‘D’ Court at Merces, shall stand transferred to the file of

Civil Judge Senior Division ‘B’ Court at Merces, who shall now

take up this suit along with Execution Proceeding No.

37/2007/B, and shall as far as possible take both these matters

simultaneously or preferably on the same date. Rule is made

absolute in the above terms.

18. It has come to my notice that in several cases where

applications for condonation of delay are pending along with

an application for restoration of a proceeding, the Civil Courts

and the District Courts pass orders granting the application for

condonation of delay and a separate order on the application for

restoration of proceedings at a later date. Obviously, if the

application for condonation of delay is dismissed, the

application for restoration must necessarily fail. Ideally, both

applications i.e. application for condonation of delay and the

application for restoration of a proceeding, must be registered

simultaneously to avoid delay in such proceedings, and if the

application for condonation of delay is allowed, the restoration

application must be decided immediately on the same date,

instead of deferring orders on the restoration application.

19. The Registrar (Judicial) of this Court shall forward this

Judgment to the Principal District Judges of North and South

Goa District, with a direction to circulate the contents and

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directions contained in Paragraph No. 18 above to all Courts

subordinate to the District Court, and to ensure that they are

complied with.

VALMIKI MENEZES, J.