1 W.P.No.7444/11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.7444 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.B.S.Shinde, advocate for the petitioner. CORAM : S.V.GANGAPURWALA,J. Date : 28.09.2011. PER COURT : 1. Heard. 2. The present Respondents had filed a suit for mandatory injunction and recovery of possession of a structure situated in North-East corner admeasuring 235 Sq.ft. out of Plot No.3, Municipal Property No.181, CTS No.2600 and as per boundaries stated in the plaint. The said suit was decreed. The appeal filed by the defendant was dismissed. Even the Second Appeal filed by the defendant came to be dismissed. Thereafter, the plaintiffs filed execution proceedings. The objection was raised by the defendant - judgment debtor that the boundaries are not properly stated and the decree is in respect of non-existent property. The property can not 2 W.P.No.7444/11 be located. The said objection is rejected. Aggrieved thereby, the present petition is filed. 3. Mr.Balaji Shinde, learned counsel for the petitioner contends that the Court has rejected the objection solely on the ground that the Executing Court can not go behind the decree. In fact, the Executing Court was required to deal with the said objection on merits after affording the petitioner an opportunity of adducing evidence and hearing him. The learned counsel submits that the said objection could have been considered U/o 21 Rule 97 of the C.P.C. For the said purpose, the learned counsel relies on the judgment of the Apex Court in the case of "Babulal Vs. Raj Kumar and others" reported in AIR 1996 Supreme Court 2050. 4. The petitioner is a Judgment debtor and has suffered the decree up to this Court. In the said suit and in appeal, the petitioner had never raised an objection regarding the identity of the suit property. The Court found that the defendant is a trespasser and even the defendant failed to substantiate his case of adverse possession. The boundaries are specifically given in the plaint along with the area and all other specifications. When the objection to the identity of the property was never raised in the suit, on the contrary, the petitioner claimed to be in adverse possession of the suit property then such an objection in execution certainly is not bonafide. Even the objection raised does not specify on what basis 3 W.P.No.7444/11 the petitioner claims that the property can not be located. The objection is also raised in casual manner. In the case of "Babulal Vs. Raj Kumar and others" referred supra, the Apex Court was dealing with the matter, wherein the decree was not for possession and in execution the same was sought to be claimed. The same could not be applicable to the present proceedings. 5. In light of the above, the Writ Petition being sans merit, is dismissed. No costs. (S.V.GANGAPURWALA,J.) Dt.28.09.2011. asp/office/wp7444.11 4 W.P.No.7444/11