1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO.325 OF 1999 Dr.Sanjaykumar K.Dolas .. Petitioner V/s Maruti Shankar Magre & Ors. .. Respondents Mr.V.S.Gokhale for the petitioner. Mr.Dinesh Shah i/by Mr.K.A.Shah for Respondent Nos.1 & 2. Mr.A.I.Patel, AGP for the Respondent No.4. . CORAM: A.S.OKA, J. DATE: 25th November, 2010. P.C.: 1. Heard learned counsel appearing for the parties. The petitioner is the original plaintiff and the 1st and 2nd contemnors-Respondents are the original defendants. A suit for declaration and injunction was filed by the petitioner against the 1st and 2nd contemnors in the Court of Small Causes. An order of injunction was passed for protecting possession of the petitioner. In breach of the said order of injunction, the petitioner was dispossessed and therefore notice was taken out by the petitioner for restoration of possession. By order dated 14.10.1998 the said notice was made absolute and the 1st and 2nd contemnors were directed to restore possession of the suit premises to the petitioner-plaintiff. The 1st and 2nd contemnors were granted time to restore possession till 5.11.1998. 2. The contempt petition was filed in July, 1999 pointing out that the 1st 2 and 2nd contemnors have not complied with the order dated 14.10.1998. It is not in dispute that the order dated 14.10.1998 has become final, in the sense, the same has been confirmed up to this Court. 3. An amendment was carried out to the contempt petition by pointing out that the 3rd contemnor is acting in collusion with the 1st & 2nd contemnors and was claiming to be in possession of the suit premises. It is pointed out by the amendment that when the possession warrant was sought to be executed by the Court bailiff, the 3rd Respondent and his family members obstructed for the same. 4. The learned counsel appearing for the petitioner submitted that there is a finding of the trial Court that the petitioner was dispossessed by the 1st and 2nd contemnors in breach of the order of injunction, and the order directing 1st and 2nd contemnors to restore the possession to the petitioner has attained finality. He submitted that the finding of the trial Court is that the 1st and 2nd contemnors are in possession of the suit premises and therefore this is a case of clear defiance and willful breach of the order dated 14.10.1998. He submitted that though the 3rd contemnor is fully aware of the said order, acting in collusion with the 1st and 2nd contemnors, he has also defied the order. He, therefore, submitted that this is a case of willful disobedience of the order of the trial Court. 5. The learned counsel appearing for the 1st and 2nd contemnors states that 3 the said contemnors are not in possession and an affidavit to that effect has been filed in this petition. He pointed out that the 3rd contemnor and other six persons obstructed execution of the said order and the Court bailiff has noted that obstruction. He submitted that the 1st and 2nd contemnors have not committed any breach. 6. I have given careful considerations to the submissions. It is not in dispute that the order of which breach is complained of, is capable of being executed in accordance with the Code of Civil Procedure, 1908. In fact, an application for execution of the said order was filed and the executing Court issued possession warrant. In the reply filed by Respondent Nos.1 and 2 and in particular in paragraph No.3 it is stated thus:- “.....I say that on 19.7.1999 at 5.50 p.m., the petitioner alongwith A.A.Pawaskar, bailiff of Hon’ble Small Causes Court went to suit premises to execute the said warrant of possession. The bailiff found that me and my wife were not in the said premises and it appears that Respondent No.3 herein and 6 other persons were found to be in possession of the said premises. I say that it appears that the said persons in possession obstructed the said warrant of possession and the said obstruction was recorded by the bailiff.” 7. In clause (i) of the paragraph No.5 of the reply there is a categorical statement on oath by the 1st Respondent for himself and on behalf of 2nd Respondent that the said Respondents are not in possession. 8. It is obvious that the 1st and 2nd Respondents are bound by the statements made in the reply and now they cannot claim to be in 4 possession of the suit premises. It is not in dispute that the application for execution of the order of which breach is complained of has been filed and the possession warrant has been issued. If the 3rd Respondent has obstructed the warrant of possession, the petitioner will have to adopt appropriate remedy provided under the said Code. 9. The order of which breach is complained of is capable of being executed and is in fact sought to be executed by the petitioner. Therefore, this is not a case where the contemnors can be penalised by exercising the power under the Contempt of Courts Act, 1971. Hence, notice issued to the 1st and 2nd contemnors is discharged. This Court has not issued notice to the 3rd contemnor. Contempt petition is disposed of. (A.S.OKA, J.)