1 wp6526.09.sxw ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6526 OF 2009 Shri Kanakraj Pakhraj Punmiya since deceased through his L.Hs. Mrs. Rukmanibai Kanakraj Punmiya & ors. ..Petitioners. Vs. Shri Kantilal Milapchand Punmiya & ors. ..Respondents. Mr.V.S.Kapse, advocate for the Petitioners. Mr.R.S.Datar, advocate for Respondent Nos. 1 to 4. CORAM : B.R.GAVAI, J. DATE : MARCH 10, 2011. P.C. 1. Rule. Rule made returnable forthwith. Heard by consent. 2. By the present Petition, the Petitioner challenges the order dated 4th June, 2007, thereby rejecting the application filed by the present Petitioner­Decree holder under the provisions of Order 21 Rule 35 of C.P.Code to take appropriate action against the Judgment Debtor and for direction to hand over physical possession of the suit property to the decree­holder/applicant. 2 wp6526.09.sxw 3 In Regular Civil Appeal No.122 of 1997, the matter was amicably settled between the parties and the Consent Terms were placed on record on 13th April, 2000. The Consent Terms were recorded by the Order dated 13th April, 2000 by learned Appellate Court. As per the Consent Terms, after reconstruction of the building, after carrying out due repairs the Petitioner was to be given a premises admeasuring 84 sq.ft. by the Respondent on rent. There are other terms and conditions in the said Consent Terms, which put certain obligations on both the parties. It appears that since the Respondents failed to comply with the terms and conditions mentioned in the Consent Terms, execution proceedings came to be filed by the present Petitioner. In the said proceedings, an application below Exh. 18 came to be filed by the Respondent praying for stay to the execution proceedings. It was contended that for want of regularisation of the construction of the tenanted premises, decree cannot be executed. However, the said application came to be rejected by the learned Executing Court by Order dated 21st June, 2006. Subsequently, an application in question came to be filed by the present Petitioner. The same was also resisted on the same ground that the construction was not regularised by the Pen Municipal Corporation and that the Pen Municipal Corporation broke down the shutter and as such decree was not executed. Learned Judge vide the order impugned observed that the suit property can not be identified and as such rejected the application. Being aggrieved thereby, the Petitioner has approached 3 wp6526.09.sxw this court. 4 Shri Kapse, learned Counsel appearing on behalf of the Petitioners submits that the learned Judge by order dated 21st June, 2006 had rejected the application filed by the present respondent on the very same ground but the learned Judge ought not have rejected the application filed by the present Petitioner. 5 Shri Datar, Counsel appearing on behalf of the Respondents, on the contrary submits that since the Pen Municipal Corporation has found the construction as illegal, demolished certain part of that, no error could be found in the order passed by the learned trial Judge. 6 When the Consent Terms between the parties have received the seal of the court, the parties cannot be permitted to resile from that. I have personally perused the photograph of the site in question, which was earmarked to be given on tenancy to the Petitioners. It can clearly be seen that the shop is very much in existence. Shutter of the said shop is removed. However, on perusal of the photograph of other shops, it is noticed that the shutters are still in existence. In that view of the matter, I find that the reasoning of the trial Court that the property can not be identified is not sustainable in law. Insofar as the objection of the Respondent regarding Pen Municipal Corporation initiating proceedings 4 wp6526.09.sxw to demolish unauthorised construction is concerned, if the Petitioners desire to take risk of taking the premises on tenancy subject to the action contemplated by the Municipal Corporation, the Respondent cannot come in the way of the Petitioners getting decree executed. 7 However, during the pendency of this Petition, the Respondent Nos. 2 and 3 have filed affidavits, which are on behalf of all the respondents stating that they are willing to hand over possession of the premises, which were agreed to be given on tenancy to the Petitioners on the further condition that the Petitioners shall abide by the terms and conditions stipulated in the Consent Terms and subject to the action contemplated by Municipal Council. The said affidavits are taken on record and marked “X­1” and “X­2” respectively for identification. 8 The Petitioners have also filed an affidavit stating therein that the Petitioners are willing to accept the offer of the possession of the said premises at the risk of any future consequences, if any action is contemplated by the Pen Municipal Council. The said affidavit is also taken on record and marked “X­3” for identification. 9 In that view of the matter, the Petition is disposed of on the following terms. 5 wp6526.09.sxw i) The Respondents shall hand over peaceful and vacant possession of the premises as stated in the affidavit within a period of four weeks from today. ii) As agreed in the Consent Terms in paragraph­4, the Respondent shall put the shutter to the said shop prior to handing over the premises to the Petitioners. iii) The Petitioners shall accept the possession of the premises, at the risk of any action contemplated by the Pen Municipal Corporation. iv) The Petitioners shall abide by the other terms and conditions, as mentioned in the Consent Terms. 10 Rule is made absolute on the above terms. [ B.R.GAVAI, J ]