1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1975 OF 2007 WRIT PETITION NO. 1975 OF 2007 WRIT PETITION NO. 1975 OF 2007 Gulab Baburao Chougule .... Petitioner Vs. Shri Vasant Baburao Bhosale & Ors. Respondents Mr. Balasaheb Deshmukh, Advocate, for the petitioner. Mr. S.V.Sadavarke, Adocate, for respondent Nos. 1 & 8. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE: 5th December,2008. DATE: 5th December,2008. DATE: 5th December,2008. P.C. P.C. P.C. 1. The petitioner and some others filed Regular Civil Suit No.593 of 1997 against the present respondents Nos.1 to 7 for removal of encroachment from their land Survey No.258/1. It was contended that defendant No.1, who is respondent No.1 before the Court, had encroached upon the said land to the extent of 2 Ares. The land was got measured through Cadastral Surveyor. The said 2 Cadestral Surveyor was examined as witness and encroachment was proved. The suit was decreed for removal of encroachment. On 30.12.2002, in Regular Darkhast No.53 of 2000, possession of open space under encroachment was given to the plaintiffs and possession receipt was executed in presence of the panch witness. After that the respondent No.8 - Prakash, who is son of the original defendant No.1, made an application on 3.1.2003 under Order XXI Rule 99 of the C.P.C. contending that he was in possession of the land Survey No.243/2 as well as the house property and that only paper possession was taken by the plaintiff/decree holder wrongly and the paper possession should be given back to him. After hearing the parties, that objection was rejected by the Executing Court on 24.7.2003. As on some portion under encroachment, the defendant had made construction, police assistance was given for execution of the decree and for removal of that encroachment. Accordingly, on 18.12.2004, that portion was also put in possession of the plaintiff/decree holder and necessary panchnama was drawn. On 21.7.2006, the respondent No.8 Prakash again filed an application as a third party for measurement on the ground that possession was taken without proper measurement as per the decree and that the portion of the house which was in possession of the respondent NO.8 was also demolished and damage was caused 3 to the same. He requested for fresh measurement. That application was allowed and the Taluka Inspector of Land Records was directed to meassure the suit property mentioned in the said application. That order has been challenged in the present petition by the original plaintiff/decree holder. 2. Heard the learned Counsel for the parties and perused the relevant documents. 3. From the order passed by the Executing Court on 24.7.2003 on the application Exhibit 40 which was filed by the respondent No.8 as a third party, it is clear that the respondent No.8 was claiming house property through his father and not independently and therefore he was not treated as third party in the matter and being the son of the judgment debtor, he was bound by the decree. The application Exhibit 79 was filed by him more than 1-1/2 year after the decree was finally executed and the encroachment was removed. In this application, he claims to be a third party. In fact, he could not be treated as a third party as was the observed by the Executing Court while disposing of the earlier application. Respondent No.8 could not claim to be a third party because he is claiming this property through his father who was the judgment debtor. Therefore, there was no justification 4 to entertain his application Exhibit 79 nor it was necessary to appoint the Taluka Inspector of Land Records to measure the suit property again because the suit property was already measured and on the basis of that evidence the suit was decreed. If the judgment debtor felt that the plaintiff/decree holder had taken possession of some excess area and thus made encroachment, he could have taken objection immediately before the Executing Court, but no such objection was taken by the judgment debtor and, as pointed out above, the objection was taken more than 1-1/2 year after the decree was fully executed. If the respondent No.8 feels that some portion of his property has been wrongly taken by the plaintiff/present petitioner, he could file independent suit against him. As the execution was already completed, his application could not be entertained under Order XXI Rule 99 of C.P.C. Therefore, I find that the Executing Court was not justified in directing the measurement of the suit property afresh on the basis of the application made by the respondent no.8. 4. Therefore, the petition is allowed. The impugned order below Exhibit 79 is hereby set aside. However, it is made clear that if the respondent No.8 - Prakash has a grievance that some portion of his property has been encroached upon by the petitioner while executing the decree in his possession, the respondent 5 No.8 shall be at liberty to file a suit for recovery of that portion. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)