1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5253 OF 2009 Shri Eknath Mahadu Kasbe, Since deceased through legal heirs - 1A. Smt. Sitabai Eknath Kasbe & Ors. .. Petitioners Vs Shri Suka Mahadu Kasbe & Ors. .. Respondents -- Shri S.S. Kulkarni for the Petitioners. Shri R.D. Soni i/by M/s. Ram & Co. for the Respondent No.1. Ms Leena Patel h/f Shri M.S. Karnik for Respondent No.3. -- CORAM : A.S.OKA, J. DATE : 5TH FEBRUARY, 2010 JUDGMENT : . By this Writ Petition under Article 227 of the Constitution of India, the challenge is to the order dated 2nd May, 2009 passed by the learned Civil Judge, Senior Division by which the 5th Respondent has been ordered to be impleaded as a party to the execution application. The Petition arises out of a decree passed in the suit filed by the predecessors of the Petitioners. The 1st to 4th Respondents herein are the Defendants to the said suit. By the said decree, it was declared that the original Plaintiff had 1/3rd share in the suit land more particularly described in the Plaint. It was held that the transaction of sale in respect of a part of the suit land effected 2 by the 3rd Respondent in favour of the 4th Respondent is null and void. A decree of partition was passed and a direction was issued under Section 54 of the Code of Civil Procedure, 1908 ( hereinafter referred to as the said Code ). The decree was confirmed by the District Court. A Second Appeal was preferred to this Court by the 3rd Respondent herein. Though, the decree was maintained in the Second Appeal, a modification was made by directing that the land admeasuring 2 Hectares out of the suit land sold by the 3rd Respondent to the 4th Respondent shall, as far as possible, be allotted to the share of the 3rd Respondent. It was further directed that if the land was so allotted, the 4th Respondent may retain the possession thereof. The Second Appeal was accordingly decided on 18th September, 2007. 2. It must be stated here that the 5th Respondent filed a suit for declaration contending that the decree passed in the suit filed by the Petitioners was not binding on the said Respondent and even partition proceedings were not binding. An application for injunction was made by the 5th Respondent in the suit was rejected by the Trial Court. The said order rejecting the application for temporary injunction was challenged in a Writ Petition filed in this Court. By the judgment and order dated 12th December, 2008, the Writ Petition was not entertained. However, it was observed that if the 5th Respondent desires to withdraw the suit and file appropriate proceedings, such proceedings will not be affected by the order rejecting application for temporary injunction. 3 3. Thereafter, if the 5th Respondent along with the 6th Respondent filed an application purporting to be an application under Rule 10(2) of Order I of the said Code in the execution application. The Petitioners prayed that they may be impleaded as parties to the execution application. Another application was made by the said Respondents contending that the order dated 21st October, 2002 sending precept to the Collector be recalled. The application under Rule 10(2) of Order I of the said Code was opposed by the Petitioners by filing a reply and by the impugned order, the said application has been allowed. 4. The learned counsel appearing for the Petitioners submitted that in the execution application, third parties could not have been impleaded as the parties as they were not the parties to the suit. Inviting the attention of the Court to the scheme of the Order XXI of the said Code, the learned counsel submitted that the Rule 10 of order I of the said Code cannot be invoked in the execution application and in fact the Court had no jurisdiction to implead the 5th and 6th Respondents as the parties. The learned counsel appearing for the 5th Respondent supported the impugned order. He submitted that the rights of the 5th and 6th Respondents who are the third parties will have to be adjudicated upon in the execution application and not by way of a separate suit in view of Section 47 and the Rule 101 of Order XXI of the said Code. He placed reliance on a decision of the Apex court in the case of V.J. Thomas v. Pathrose Abraham & Ors., [ (2008)5 SCC 84 ]. He, therefore, submitted that no interference is called 4 for. I have also heard the learned counsel appearing for the third Respondents. 5. I have given careful consideration to the submissions. According to the case of the 5th and the 6th Respondents, the notice of the proceedings for partition has been served to them by the revenue authorities. It is contended that the partition is sought to be effected in respect of the properties which were not the subject matter of the suit and that the said Respondents are not the parties to the suit. A specific prayer in the application is for impleading the said Respondents as the Defendants or the judgment debtors. 6. The 5th and the 6th Respondents are admittedly not the parties to the suit. Therefore, they cannot be impleaded as the judgment debtors. If the said Respondents obstruct the execution of the decree, the proceedings will have to be initiated by the decree holder under Rule 97 of Order XXI of the said Code. In the said proceedings, the adjudication will have to be made in accordance with the law. The third parties, in a given case, can apply to the Executing Court for adjudication in accordance with Rule 97 of Order XXI of the said Code. In such a case, adjudication is required to be made to the Court in accordance with Rule 97 read with 101 of Order XXI of the said Code. 7. Considering the scheme of Order XXI of the said Code, there 5 was no occasion to implead third parties as the judgment debtors especially when the third parties were not parties to the suit. Reliance placed by the learned counsel appearing for the 5th Respondent on the decision of the Apex Court in the case of V.J. Thomas (supra) will not help him inasmuch as the Apex Court was not specifically dealing with the question as to whether in exercise of powers under Rule 10(2) of Order I of the said Code, the strangers to the decree can be impleaded as the parties to the execution application. 8. If the 5th and the 6th Respondents are aggrieved by the decree passed in the suit, they have an appropriate remedy open. If the said Respondents are aggrieved by the action of the revenue officer while effecting partition, as the concerned revenue officer acts under Section 85 of the Maharashtra Land Revenue Code, 1966 while effecting partition, the statutory remedies of the 5th and the 6th Respondents are open. 9. Suffice it to say that by invoking Rule 10(2) of Order I of the said Code, the said third parties could not have been impleaded as the parties to the execution application. 10. Hence, subject to what is observed above, the impugned order deserves to be quashed and set aside. It is, however, made clear that no adjudication has been made on the rights claimed by the parties to the Petition and all legal remedies of the 5th and the 6th Respondents remain 6 open. 11. Hence, I pass the following order. (a) Subject to what is observed in the judgment, the Writ Petition is allowed. The impugned order dated 2nd May, 2009 is quashed and set aside and the Application at Exhibit -6 stands dismissed. (b) There shall be no orders as to costs. (A.S.OKA, J)