1 ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5260 OF 2009 Shrishail Sidramappa Nadgiri & Anr. .. Petitioners. Vs Mrs. Premalata Mallinath Nadgiri & Ors. .. Respondents -- Shri A.K. Suryawanshi for the Petitioners. -- CORAM : A.S.OKA, J. DATE : 9TH APRIL, 2010 P.C: . The Petitioners have taken an exception to the order dated 18th February, 2009 passed by the Executing Court in an execution application filed by the 1st and the 2nd Respondents. 2. The 1st and the 2nd Respondents filed a suit for partition and separate possession. The suit was partly decreed. In an appeal, it was held that the 1st and the 2nd Respondents are entitled to 1/6th share each in the suit properties. The present Petitioners are the 1st and the 2nd Defendants in the said suit. A Second Appeal preferred by the Petitioners has been 2 admitted by this Court. However, only a limited relief has been granted in the Second Appeal directing that the partition proceedings will go on but actual physical partition by metes and bounds will not be effected till the final disposal of the Second Appeal. A final decree application was filed by the 1st and the 2nd Respondents ( original Plaintiffs ). An application under Section 151 of the Code of Civil Procedure, 1908 was made by the Original Plaintiffs in the said final decree application. The said application was for grant of maintenance at the rate of Rs.2,000/- per month on the ground that the suit properties were in possession of the present Petitioners and that the 1st and the 2nd Respondents had no source of income. It was contended that though there is a decree for partition in their favour, they were unable to obtain their share. Therefore, on the said application, the Trial Court passed an order directing the payment of maintenance of only Rs.500/- per month each to the 1st and the 2nd Respondents. As the said maintenance amount was not paid, the 1st and the 2nd Respondents filed an application for execution of the said order of maintenance. In the said application, the Petitioners filed an objection under Section 47 of the said Code contending that the execution application was not maintainable. By the impugned order, the said objection has been overruled. 3. The learned counsel appearing for the Petitioners submitted that there was no personal decree passed against the Petitioners for partition. He submitted that under Section 151 of the said Code, the Trial Court had no jurisdiction to pass an order of maintenance in the final 3 decree proceedings. He, therefore, submitted that the order granting maintenance is not capable of being executed. 4. I have considered the submissions. In the partition proceedings, the application by the Plaintiffs for grant of maintenance was maintainable. The case of the 1st and the 2nd Respondents was that notwithstanding the decree for partition, they have been kept away from the property which is in the custody of the Petitioners. On the said application, a very reasonable amount of maintenance was granted way back in the year 2000. That order was not challenged by the Petitioners. In view of Section 36 of the said Code, the order granting maintenance can be executed. Therefore, there was no merit in the objection raised by the Petitioners. There is no reason to interfere with the impugned order in writ jurisdiction under Article 227 of the Constitution of India. The Writ Petition is rejected. (A.S.OKA, J)