1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. W.P.NO.4363 OF 2008. (Sangam Devaji Meshram and ors. ..vs.. Rajendra Jaiswal) ---------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's directions and Registrar's order. orders. ------------------------------------------------------------------------------------------------------------------------- Coram : C.L.PANGARKAR, J. Dated : 10th JULY, 2009. 1. Heard Mr.S.V.Sirpurkar, learned counsel for the petitioners and Mr.Phadnis, learned counsel for the respondent. 2. This writ petition challenges the order passed by the Civil Judge (Sr.Dn,), Chandrapur in Spl.Darkhast No. 31/2004, whereby the present petitioner prayed for dismissal of the execution proceedings. 3. The main contention of the petitioners was that the person against whom the decree is said to have been obtained was dead and he was never served with the 2 summons. It was, therefore, contended that the decree could not be executed. 4. The learned Civil Judge has rejected the application holding that unless and until the decree for specific performance itself is set aside by the court, the court is not supposed to keep its hands off. 5. It is not disputed that the present petitioner has filed an application under order 9 Rule 13 for setting aside the decree in Civil Suit No.11/2000. The said application is pending and it is that decree which is sought to be executed. The remedy, therefore, in fact available to the present petitioner was to move an application for stay in the M.J.C.No.92/2004 under Order 21 Rule 26 of C.P.C. The learned civil judge did not commit any error in rejecting the application in Spl.Darkhast No.31/2004 because executing court cannot go behind the decree. Therefore, there is in fact no substance in the writ petition. As already observed the petitioner has a right to approach the court before whom the M.J.C.No.92/2004 is filed for obtaining the stay to the execution of the decree. The civil judge, if at all such an application is moved by the petitioners in the said MJC, 3 shall be at liberty to decide the application on its own merits and according to law. The petition stands disposed of. No order as to costs. In the meanwhile, further proceedings in the execution proceedings are stayed for a period of two weeks. JUDGE chute