1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7741 OF 2008 Ramchandra (died through L.Rs.) Shivaji Rmachandra Jadhav and others ...petitionerss Versus Govindrao (Died through L.Rs.) Bhagirathibai Govindrao Jadhav and others ...Respondents ..... Mr. V.C. Solshe, advocate for the petitionerss Mr. E.P. Sawant, advocate for respondent Nos.1 to 4 ..... CORAM: S. S. SHINDE, J. DATED: 25TH SEPTEMBER, 2009 PER COURT:- 1 This writ petition is directed against the order dated 17.12.2007 passed by the learned C.J.J.D. Gangakhed below Exh.75 in Regular Darkhast No. 17 of 1995. The said Darkhast is filed for execution of decree passed in R.C.S. No. 44 of 1981. 2 Learned counsel appearing for the petitioners has invited my attention to the impugned order and submitted that the impugned order is passed without application of mind and without assigning any reason. The trial court ought to have comprehensively dealt with the 2 application filed by the present petitioners under Section 47 of the Code of Civil Procedure. Learned counsel further submitted that the findings recorded by the trial court that there is no stay to the execution proceeding is contrary to the record. Learned counsel invited my attention to order dated 3.5.2003 passed by the learned C.J.J.D. Gangakhed below Exh.21 in R.D. No. 17 of 1995 and submitted that execution of the Darkhast is stayed till disposal of the objection petition under Section 87 of the C.P.C. vide Exh.17. Therefore, learned counsel would submit that the observations in the impugned order that there is no stay to the execution of the Darkhast is contrary to the record. Learned counsel further invited my attention to the grounds taken in the petition and annexures thereto and in support of his contention he placed reliance on the reported judgment of the Andhra Pradesh High Court in the case of Arif Abdul Gani and others Vs. S. Maheshwar Rao and others reported in [2001 (1) BCJ 306] Andhra Pradesh High Court and submitted that when the application is filed under Section 47 of the C.P.C. then it has to be dealt with in comprehensive manner and the provisions of Order XXI are applicable while dealing with the said application. Learned counsel invited my attention to para 19 of the said judgment and submitted that the impugned order does not deal with the averments in the application in comprehensive manner and therefore, the impugned order deserves to 3 be set aside. Learned counsel further placed reliance on the reported judgment of the Apex Court in the case of Babulal vs. Raj Kumar and others reported in [1996 (2) BCJ 551 (SC)] and submitted that the application under Section 47 of the C.P.C. and provision of Order XXI and Rules there under would automatically made applicable and the court dealing with the application under section 47 of the C.P.C. has to follow the procedure under Order XXI and the Rules thereunder. Therefore, learned counsel would submit that the impugned order is not sustainable in law. 3 Learned counsel appearing for the respondent submitted that the suit filed by the respondents decreed in the year 1984. The appeal preferred by the petitioners herein failed and thereafter the Civil Revision Application was preferred and the same was also rejected. Thereafter the Special Leave Petition was filed before the Hon'ble Supreme Court which was also rejected. Therefore, learned counsel would submit that all attempts of the petitioners have failed and therefore, the petitioners are trying to prolong the execution proceeding by filing applications one after another. Learned counsel further submitted that if the averments in the application and prayers are perused, then it can be certainly gathered that the petitioners are trying to prolong the execution proceedings. The petitioners have filed 4 application thereby making a serious attempt to treat the application like a suit for declaration. Learned counsel has invited my attention to the prayers in the application and the contents therein and has submitted that if the petitioners are so aggrieved, he can file civil suit for declaration. Learned counsel submitted that there was no attempt on the part of the petitioners to invite detailed reasonings from the impugned order and the trial judge was left with no option but to decide the application on merits. Learned counsel would submit that since execution proceedings are pending since long and decree is passed in the year 1984, it is desirable that the writ petition may be dismissed. 4 I have heard learned counsel for the petitioners and the respondents concerned and upon perusal of the contents of the petition, and annexures thereto, I am of the considered view that the impugned order passed by the trial judge is cryptic. The observations are contrary to the record. In fact there is stay to the execution proceedings. However, the court has recorded that there is no any stay to the execution proceedings. I find considerable substance in the arguments advanced by the learned counsel for the petitioners that while dealing with the application filed under Section 47 of C.P.C. the same has to be dealt with in comprehensive manner. I find further substance in the arguments advanced by the counsel for the petitioners that certain judgments were referred to before the trial court, however, the trial court has not adverted to the said judgments 5 in the impugned order. 5 Though learned counsel appearing for the respondents is justified in contending that the decree is passed in the year 1984 and the respondents are awaiting the fruits of the said decree for a considerable long time. The fact remains that if the application is filed under Section 47 of the C.P.C. then the provisions of Order XXI with Rules thereunder are made applicable, therefore, while adjudicating such application the same has to be treated in comprehensive manner. On query by this Court about possession, the counsel for the petitioners submitted that it is undisputed position that the petitioners are in possession. It would not be desirable to give any findings on the merits of the matter. Suffice it to say that the impugned order is cryptic and unreasoned and the observations that the there is no stay to the execution proceeding is contrary to the record. Without entering into the merits and demerits of the application, it would be desirable that the application which was filed by the petitioners herein is restored to its original position and it is left open to the trail court to consider the said application in accordance with law on merits and decide the same by following the provisions of C.P.C. and other relevant provisions within three months from the date of receipt of this order. 6 In the result, impugned order is quashed and set aside. Exh.75 i.e. application filed by the petitioners in Regular Darkhast No. 17 of 6 1995 is restored to its original position. It is left open for the parties to agitate the points on merits and demerits of the application. It is made clear that this court has not expressed any opinion on the merits of the matter. It will be open for the respondents to oppose the application. Writ petition is partly allowed and the trial court is directed to expedite the hearing of the application and dispose of the same within three months from the date of receipt of this order. *****