1 W.P.No.6508/11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.6508 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr.S.P.Katneshwarkar, advocate for the petitioners. CORAM : S.V.GANGAPURWALA,J. Date : 03.10.2011. PER COURT : 1. Heard. 2. The petitioners are the original judgment debtors. The suit filed by the present Respondents for partition and separate possession came to be decreed up to the Apex Court. The plaintiff filed execution proceedings. Objection was raised by the present petitioners that in fact, there was a compromise decree passed by Civil Court accepting the oral partition dt.30.3.1967. The said decree could not be placed at the time of the suit and the objection to that regard could not be taken in the suit. In view of that decree the proceedings in present suit stands vitiated. The said objection needs to be considered by the Executing Court and the Executing Court rejected the said objection only on the count that the 2 W.P.No.6508/11 Executing Court can not go behind the decree. In fact, when the plaintiff suppressed the material facts then in such circumstances, it would tantamount to playing fraud over the Court. 3. With the assistance of the learned counsel, I have gone through the judgments delivered by the trial Court and the appellate Court in the suit. The copy of the said decree in earlier suit was produced in the Second Appeal. The Second Appeal was dismissed by the learned Single Judge of this Court on 10.7.2006. In the said judgment, the said compromise decree has been taken into consideration by the Court and detail reasoning are given in respect of the said compromise decree. As such it can not be said that the said decree was not considered and the Executing Court should again consider the same. 4. In view of the fact that the said document i.e. earlier decree was placed on record and so also the same was considered by this Court in Second Appeal in its judgment, the same objection now can not be entertained by the Executing Court. The Executing Court has rightly dealt with the matter. No error has been committed by the trial Court. As such the Writ Petition is dismissed. No costs. (S.V.GANGAPURWALA,J.) Dt.03.10.2011. asp/office/wp6508.11 3 W.P.No.6508/11