1 WP 5781.2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5781 OF 2011 Bhanudas @ Bhanupratap S/o Honaji Gajbhiv, Age : 60 Years, Occ. : Agril. / Business, R/o : Dr. Ambedkar Chowk, Shevgaon, Tq. Shevgaon, Dist. Ahmednagar. .... PETITIONER V E R S U S 1. Shantaram S/o Sakharam Jondhale Age : 70 Years, Occ. Agril. R/o : Mapari Galli, Newasa, Tq. Newasa, Dist. Ahmednagar. 2. Sau. Kusumbai W/o Shantaram Jondhale Age : 60 Years, Occ. Agril. R/o : Mapari Galli, Newasa, Tq. Newasa, Dist. Ahmednagar. .... RESPONDENTS Mr. V.S.Bedre, Advocate for the Petitioner. Mr. V.D.Sapkal, Advocate for Resp. Nos. 1 & 2.. 2 WP 5781.2011 - [ J ] CORAM :S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 29/08/2011 JUDGMENT : 1. The present respondents/decree holders/original plaintiffs had filed a Suit for mandatory injunction and possession. It was the case of the respondents/decree holders that the suit property i.e. house property bearing No. 1915 of village Shevgaon [ old No. 1916 ] admeasuring 70 ft. x 30 ft. is owned by them and the plaintiffs had constructed a compound wall and raised construction admeasuring 30 ft. x 10 ft. The defendant has forcibly taken possession and as such claimed mandatory injunction, so also possession. The said decree was confirmed up to the Apex Court. Thereafter, the respondents/decree holders filed execution proceedings. The trial Court passed order below Exh. 71 issuing possession warrant against the judgment debtor i.e. the present petitioner to deliver vacant possession of the suit property by removing any construction on it. The said order is assailed in the present Writ Petition. 2. Mr. V.S.Bedre, the learned counsel for the petitioner submits that the Court could not have issued the warrant of 3 WP 5781.2011 - [ J ] possession in view of the fact that the property is not identifiable. The learned counsel contends that on the application of the petitioner, the executing Court had appointed the T.I.L.R. as Court Commissioner to demarcate the suit property. In the said order itself, it was observed by the executing Court that according to the decree holders, during the pendency of the proceedings, the suit property is completely changed and it is merged in other property. The learned counsel further contends that the T.I.L.R., who was appointed, has submitted his report and according to the said report, the suit property does not form part of S.No. 127/3-A/2/2 and he had submitted a Map and a part of the said property is in possession of Mr. Bharade, a stranger to the Suit and only the property marked as B,C,E and F is shown to be in possession of the defendant and the T.I.L.R. further stated that as per the decree, the possession of the defendant is not in S.No. 127. The learned counsel contends that in view of the report of the expert i.e. the T.I.L.R., the Court could not have issued the warrant against the petitioner to deliver the possession in respect of the suit property as the same is changed and merged with other property. The Court has not taken into consideration this aspect and has in a casual manner, issued warrant of possession. The learned counsel relies 4 WP 5781.2011 - [ J ] on the Judgment of the Apex Court in the case of Pratibha Singh and another V/s Shanti Devi Prasad and another reported in AIR 2003 Supreme Court – 643. The learned counsel submits that first the executing Court should ascertain the exact description of the decreetal property. 3. Per contra, Mr. Sapkal, the learned counsel for the respondents/decree holders submits that the present petitioner/judgment debtor had raised an issue about the identity and description of the suit property even in the Suit. An issue was also framed to that effect and the Court has held that the suit property is properly described and had further held that the construction raised by the defendant is on the suit property owned by the plaintiffs. Even the first appellate Court has held that the plaintiffs are the owners of the suit property and the defendant’s possession is illegal. Even during the pendency of the Suit, twice the Court Commissioner was appointed and the report was submitted. The said Court Commissioner’s report regarding the suit property is also considered by the Court while delivering the Judgment and the said Judgment of the trial court is up-held up to the Apex Court. According to the learned counsel, the decree 5 WP 5781.2011 - [ J ] passed by the Court can not be allowed to be frustrated in such a manner. Even an application has been filed to take action against the T.I.L.R. for submitting such a report. The learned counsel relies on the Judgment of the Apex Court in the case of Ravinder Kaur V/s Ashok Kumar and another reported in 2003 (7) Supreme – 365. 4. With the assistance of the learned counsel for the parties, I have gone through the impugned order. 5. The only question involved in the present Writ Petition is about the issuance of warrant of possession and directing the present petitioner/judgment debtor to hand over possession of the suit property to the decree holders vide the Order passed by the executing Court. 6. It is a settled position of law that the executing Court can not go behind the decree. Once the Court of competent jurisdiction had held that the property has been properly described and that the defendant has raised construction on the property of the plaintiffs, the said finding having been confirmed in all 6 WP 5781.2011 - [ J ] appellate proceedings up to the Apex Court, then the question of identity of the property can not again be made subject matter in the executing proceedings. During the pendency of the Suit also, twice the Court Commissioners were appointed and they have also submitted the Map. The Court while passing the Judgment and decree in the Suit, have considered the Map submitted by the Court Commissioners also and thereby have arrived at the conclusion. No doubt, the T.I.L.R. was appointed by the executing Court and he has submitted a report saying that some part of the suit property is in possession of the judgment debtor and some part in possession of one Mr. Bharade, who is stranger to the present proceedings. But, it can not be ignored that the plaintiffs had given the description of the suit property with boundaries, area, house number and the survey numbers. The same was the subject matter of adjudication and was adjudicated in favour of the decree holder, which was confirmed up to the Apex Court. In such circumstances, now, again the executing Court can not go into the dispute about the identity of the property. In case of Pratibha Singh and another referred supra, the Apex Court was concerned with a case where the property was not definitely identified and there was no map of the land attached with the plaint. 7 WP 5781.2011 - [ J ] 7. Here, in the present case, the property was described in the plaint by boundaries, house number, survey number and so also the area was mentioned and the identity and the description of the suit property was also the subject matter of adjudication and consistently it was held that the suit property is properly described after considering the Maps drawn by the Court Commissioner and also taking into account the oral evidence. The Apex Court in the case of Ravinder Kaur referred supra has observed that the Courts of law should be careful enough to see through the diabolical plans of the judgment debtors to deny the decree holders the fruits of the decree obtained by them. In the said case also, an attempt was made by the judgment debtor by raising an issue about the area, the boundary and in the main proceedings the Court had come to the conclusion that the site plan attached to the ejectment petition was correct. In that context, the executing Court negatived the claim of the judgment debtor regarding the correctness of the site plan. The High Court set aside the same and the Apex Court thereafter held that the said issue again need not be gone into by the executing Court and the executing Court had rightly observed that re-opening of the said issue, would amount to asking the Court to go behind the decree which is impermissible in law. 8 WP 5781.2011 - [ J ] 8. In view of the aforesaid conspectus of the matter, I do not find any error committed by the executing Court in passing the impugned order. The Writ Petition is accordingly dismissed, however with no order as to costs. 9. At this stage, Mr. Bedre, the learned counsel for the petitioner seeks continuation of the interim order passed on 04/08/2011 for further period of four ( 4 ) weeks i.e. 26/09/2011. The same is opposed by Mr. Sapkal, the learned counsel for the respondent nos. 1 and 2. However, taking into account the fact that the said relief is operating since 04/08/2011, the same is continued for further period of four ( 4 ) weeks from today. On lapse of four ( 4 ) weeks, the said interim order passed, would automatically come to an end. [ S.V. GANGAPURWALA, J.] KNP/WP 5781.2011 - [ J ]