1 wp-8866-11 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8866 of 2011 Satyabhama Sadashive Sawant & Ors. .. Petitioners Versus Anita Anant Sawant & Anr. .. Respondents Mr. Atul G. Damle for the Petitioners Mr. Sandeep Dhuri for Respondent Nos.1 & 2 CORAM : R.M.SAVANT, J. DATE : 18th NOVEMBER, 2011 P.C. : 1 Rule. With the consent of the parties made returnable forthwith and heard. 2 The above Petition takes exception to two orders being order dated 22-9-2011 and order dated 13-10-2011 passed by the Learned Civil Judge Junior Division, Shrivardhan. By the first Order the application Exhibit 146 filed by the Petitioners herein who are the Judgment Debtors raising the objection to the decree purportedly to be under Section 47 of the CPC, came to be rejected. By the same Order the Application Exhibit 149 filed by the Respondents herein for amendment of the execution application to include the “hall” in the suit property came to be allowed. By the second order the application Exhibit 156 for stay of execution came to be 2 wp-8866-11 rejected. 3 The Regular Civil Suit No.11 of 1989 filed by the Respondents herein under Section 6 of the Specific Relief Act, came to be decreed in terms of paragraph 4 of the Plaint. The decree was drawn up accordingly. The said decree has been confirmed right up to the Apex Court. The Respondents filed an execution application for execution of the decree. 4 In view of the fact that there was a mistake committed by the Respondents while filing the application in as much as the “hall” which according to them is part of the decree was not included, the Respondents filed an application Exhibit 149 for amendment of the execution application. The Petitioners herein as indicated above had filed application Exhibit 146 that the decree was not executable for the reasons mentioned in the said application. The application filed by the Petitioners came to be rejected on the ground that the decree has been confirmed right up to the Apex Court and that the Petitioners herein are trying to stall the execution of the decree on one pretext or the other. 5 In so far as, Exhibit 146 was concerned, the Petitioners who are the Judgment Debtors opposed the said execution on the ground that the decree holders are trying to include something more than what they were entitled to in the decree i.e. the “hall” which according to the Judgment Debtors was not covered by the decree. The executing Court by the first order dated 22-9-2011 allowed the said application Exhibit-149 filed by 3 wp-8866-11 the Respondents on the ground that it is on account of mistake that the “hall” was not included though the description of the property is clear in the decree. The Petitioners thereafter filed an Application Exhibit 156 stating that the execution application which included the hall on account of the amendment being allowed went beyond the decree. The said application Exhibit 156 came to be rejected by the Executing Court by an order dated 13-10-2011 on the ground of rejection of Exhibit 146 and the order passed on Exhibit 149. The said two orders as indicated above are the subject matter of the above Petition. 6 Heard the Learned Counsel for the parties. It is an undisputed position that the decree in question has been confirmed right up to the Apex Court. The Judgment of the Apex Court is dated 22-2-2010. In the Judgment of the Apex Court in paragraph 3 there is a mention of the suit property which is "southern side one room along with hall adjacent to Padavi and northern side room of hall". The description of the suit property is almost identical in the Judgment of this Court dated 28-3-2008 in Writ Petition No.1235 of 2001 by which, the decree has been confirmed by this Court. As can be seen, the suit has been decreed in terms of paragraph 4 of the plaint, which paragraph has been reproduced in the decree. The question whether the “hall” is part of the decree, therefore, hinges upon the interpretation of paragraph 4 of the plaint. The impugned order dated 22-9-2011 discloses that the Executing Court has 4 wp-8866-11 not adverted to the description of the suit property as mentioned in paragraph 4, but has merely stated that it is clear from decree that the hall is included. It appears that the Judgment of this Court dated 28-3-2008 as well as the Judgment of the Apex Court dated 22-2-2010 were also brought to the notice of the Executing Court. The Executing Court has allowed the said Application Exhibit 149 by accepting the case of the Petitioners that there was a mistake at the time of filing of the execution application. 7 In my view, the Executing Court should have gone into the issue as whether the “hall” was part of the decree on the touch stone of paragraph 4 of the Plaint. Moreso, when there was a challenge raised to the executability of the decree on the ground of inclusion of the “hall” which according to the Judgment Debtors was going beyond the scope of the decree. Since the objection was raised by the Petitioners to the decree under Section 47 of the CPC, the Executing Court was required to adjudicate upon the same. In my view, therefore, the two impugned orders are required to be quashed and set aside and the matter is required to be relegated back to the Executing Court for de novo consideration of the Application Exhibit 146 and the Application Exhibit 149 in terms of the observations made herein above. The Executing Court to decide the said applications by also adverting to the Judgment of this Court as also the Apex Court (supra). 5 wp-8866-11 On remand, the said applications to be decided within a period of one month of the parties appearing before the Executing Court. The parties to appear before the Executing Court on 2-12-2011. 8 Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs. (R.M.SAVANT, J.)