1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.442/2011 MANOHAR @ MILIND BHOYAR ..VS.. RAMESH GAWANDE & OTHERS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri M. M. Sudame, advocate for the petitioner CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 27, 2011. By this petition, the petitioner impugns the order passed by the executing court on 11.1.2011 allowing an application filed by the respondent/ decree holder to issue warrant of possession under Order 21 Rule 35 of Code of Civil Procedure. The petitioner also impugns another order dated 11.1.2011 rejecting an application filed by the petitioner for grant of independent share by partitioning the agricultural land in dispute without disturbing, obstructing and vacating the peaceful possession of the petitioner/ judgment debtor no.3, over four acres of land. The respondent no.1 and 2 had filed Regular Civil Suit no.70/1972 against the petitioner's father for partition and separate possession of their share in the suit property. Though the suit was dismissed the first appeal was allowed and the first appellate court held that the original plaintiffs/ respondent no.1 and 2 were entitled to joint possession of the suit field along with defendant no.3/ petitioner. The first 2 appellate court granted liberty to the petitioner to file a separate suit for partition and separate possession of his share in the suit property. Such a suit was filed by the petitioner. After the judgment passed by the first appellate court was confirmed, in view of the dismissal of the second appeal and the special leave petition, filed by the petitioner, the respondent no.1 and 2 sought for the execution of the decree for issuance of warrant of possession under Order XXI Rule 35 of Code of Civil Procedure. At the same time the petitioner also filed an application for grant of independent share by partitioning the agricultural land, without disturbing the peaceful possession of the petitioner over the suit property. The executing court rejected the application filed by the petitioner and allowed the application filed by the respondent no.1 and 2 / decree holders by issuing warrant of joint possession in favour of the decree holders with petitioner/ judgment debtor no.3. Since the decree passed in favour of the plaintiffs for joint possession over the suit property had attained finality, the executing court did not commit any error in rejecting the application filed by the petitioner for grant of independent share by partitioning agricultural land and allowing the application filed by the decree holders to the extent of issuance of the warrant of joint possession in favour of the decree holders with judgment debtor no.3/ petitioner. In fact, the executing court did not grant the prayer made by 3 the decree holders in its entirety and had tried to execute the decree in view of the decree for joint possession passed in favour of the plaintiffs. The apprehension expressed on the behalf of the petitioner that the petitioner would be dispossessed from the suit property in view of the orders passed by the executing court is ill-founded as the executing court has in clear terms by the order dated 11.1.2011 passed below exhibit 46 issued the warrant of joint possession and not a warrant of exclusive possession in favour of the decree holders. The executing court did not commit any error in partly allowing the application filed by the decree holders and rejecting the application filed by the petitioner, in the facts and circumstances of the case. Since the orders do not suffer from any jurisdictional error, the writ petition is dismissed with no order as to costs. JUDGE SMP