MP 1 WP1597_11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1597 OF 2011 Smt. Asha Singh wife of Rohit Singh and another ... Petitioners Versus Kailash Amarbahadur Singh and others ... Respondents Mr. Parvinder Singh Sethi for Petitioners. Mr. S. K. Dubey for Respondent No. 1. Ms. Aparna Vhatkar, AGP for Respondent No. 2. Mr. J. G. Reddy for Respondent No. 3. CORAM : B.R. GAVAI, J. MONDAY, APRIL 11, 2011 P. C. : By way of present petition, the petitioners challenge the order dated 7th February 2011 vide which the learned Judge of Small Causes Court in Execution Application No. 432 of 2010 in L.E. Suit No. 77 of 1989, rejected the application filed by the petitioners for stay of execution proceedings. 2. The learned Counsel for the petitioners submits that the petitioner No. 1 is independently occupying the suit premises for last 25 years, and as such, the learned Trial Court ought to have stayed the execution proceedings till her application objecting execution was decided by the learned Trial Court. 3. From the record, it is clear that the premises in question were originally belonged to one Amar Bahadur Singh. The same was MP 2 WP1597_11 given by him to Rohit Bansraj Singh in the year 1977. However, since the said Rohit Bansraj Singh failed to vacate the premises, the suit came to be filed in the year 1982. The suit was decreed in the year 1999. An appeal was preferred by the defendant Rohit Bansraj Singh. During the pendency of the appeal, original plaintiff - Amar Bahadur Singh passed away, and as such, his legal heir Kailash Amarbahadur Singh was brought on record. After the execution proceedings were filed by the decree holder, a decree was executed on 25th October 2010 and the hutment in question was consequently sealed. However, on 25th November 2010, when the Constituted Attorney of the decree-holder visited the premises, he found that the present petitioners were residing there along with Rohit Bansraj Singh, the husband of petitioner No. 1. As such, an application was filed by the decree-holder alleging that the wife of the original defendant has again forcibly entered into the suit premises. In the said proceedings, an application, as aforesaid, was filed by the petitioners. The same was rejected. Hence, the present petition. 4. The learned Counsel for petitioners made a categorical statement that the petitioner No. 1 was not residing with her husband for last 16 to 18 years. Taking into consideration, the fact that the son of the petitioner No. 1 was born on 14th September 1995, the petitioner was directed to file an affidavit to that effect. Subsequently, an affidavit came to be filed seeking correction of the averment in the petition to the effect that “she was not residing with Rohit Bansraj Singh for more than last 16 years”. In this background, the respondent No. 2 was directed to visit the spot and submit his report. In an affidavit dated 29th March 2011 filed on behalf of respondent No. 2, it has been stated that the averment in the petition in that regard is not true. MP 3 WP1597_11 5. It can, thus, be clearly seen that the claim of the petitioner, if any, is through the judgment-debtor Rohit Bansraj Singh who is the husband of the petitioner No. 1. 6. In that view of the matter, no case is made out for interference. Petition is rejected. (B.R. GAVAI, J)