1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2688 OF 2010 Abhay Bhaulal Patni .. PETITIONER VERSUS Smt. Kanchanbai Dhanalal Kale & others .. RESPONDENTS Mr. S.T. Shelke,Advocate for the petitioner. ===== CORAM : R. M. BORDE, J. DATE : 29th MARCH, 2010 PER COURT : 1 Heard. 2 Leave to amend. 3 The petitioners / judgment debtors are raising exception to the order passed below exh. 120 and 125 in Special Darkhast no. 10/2005 decided on 8-3-2010 thereby rejecting the objections to the execution of the decree raised by the petitioners / judgment debtors. It transpires from record that Special Civil Suit no. 179/1982 was presented by he decree holders claiming 2 possession of the suit property as well as claiming mandatory direction against the defendants seeking eviction from the suit premises. Plaintiffs had also prayed for relief in respect of payment of damages to the tune of Rs.33,000/- on account of use and occupation of the suit premises by the defendants. Trial court after considering the rival contentions was pleased to grant decree in favour of the plaintiffs on 31-10-1988. Petitioner presented appeal raising exception to the decree being First Appeal no. 500/1989 which came to be dismissed on 4-3-2005 and review petition was thereafter preferred to the High Court which was also rejected on 12-2-2005. Two Special Leave Petitions were presented to the Apex court, however, both the petitions came to be dismissed by the Apex court on 22-1-2007. While dismissing the Special Leave Petitions, time was sought for vacating the suit premises by the judgment debtors and accordingly, Apex Court has granted time of six months to the judgment debtors to vacate the suit premises. Inspite of giving assurance to the Apex Court, the judgment debtors did not vacate the suit premises and as such, decree holders were constrained to present application seeking execution of the decree. It transpires from record that there were several objections raised by different judgment debtors; in all 10 in number, objecting the executability of the decree. All the 10 objections raised by the different judgment debtors were rejected at 3 different point of time since 2005 onwards till 2009. The orders in respect of rejection of objections by the executing court were also challenged by preferring writ petition in the High Court, however, the challenge raised by the judgment debtors of rejection of objection were also turned down. It is contended that the machinery of the court cannot be utilised for seeking possession of the suit premises as the decree passed by the trial court is in respect of mandatory direction, directing the defendants to vacate the suit premises within six months from the date of the order. 3 Learned counsel for the petitioners places reliance on the Full Bench judgment of the Delhi High Court in the matter of Sarup Singh vs. Daryodhan Singh reported in AIR 1972 Delhi 142 and contends that considering the nature of the decree being in respect of mandatory directions asking the defendants to vacate the suit premises, it is not permissible for the executing court to direct enforcement of the decree through the machinery of the court. The executing court has observed in the judgment that the executing court is of the view that the suit did not include any prayer for mandatory injunction nor any decree for mandatory injunction was passed by this court. Learned counsel for the petitioner has objected the statement appearing in the judgment of the executing court and contends that objection has not at 4 all been considered by the executing court in its proper perspective. Copy of the judgment in special Civil Suit no. 179/1982 is made available. It transpires on perusal of the judgment that the suit was presented by the plaintiff seeking relief of recovery ofpossession of the suit premises from the defendants. Apart from the decree in respect of recovery possession, the plaintiff appears to have prayed for mandatory injunction. Trial court has decreed the suit of the plaintiffs for possession of the suit premises and has further issued directions to the defendants to handover the vacant possession of the premises. The contentions raised by the judgment debtors that the suit itself was not for recovery of possession, does not appear to be correct. Reliance placed on the reported judgment of the Delhi High Court therefore is misplaced. 4 There are several attempts made by the judgment debtors for stalling the execution by raising various objections. Inspite of giving undertaking to the Apex court in respect of vacation of the suit premises within stipulated time, the judgment debtors have failed to abide by such an undertaking thereby requiring the decree holders to seek the help of the court for executing the decree. I am of the view that the objections raised are of frivolous nature and a such no interference is called for in the writ petition in 5 exercise of extra ordinary jurisdiction under Article 227 of the Constitution of India. Writ petition therefore stands dismissed with cost quantified at Rs.10,000/-. 5 In view of dismissal of petition, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/wp2688.10.odtp