1 cp260 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CONTEMPT PETITION NO.260 OF 2009 Suresh Vinayak Shinde ...Petitioner vs. 1 Ravasao Bhimrao Gaikwad & Ors. ...Respondents Mr.Shrishail Sakhare for the petitioner Mr.Akshay Shinde i/b Mr.A.M.Kulkarni for respondent nos.1 and 2 Mr.S.R.Nargolkar for respondent nos.6 and 7 Mr.A.I.Patel, A.G.P for respondent no.8 CORAM :A.S.OKA,J. DATE: DECEMBER 3, 2010 P.C.: 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent Nos.6 and 7. The breach alleged is of ad-interim order dated 23rd June 2009 passed by this Court. The said order is order of ad-interim relief directing the parties to maintain status quo for a period of two weeks from the date of the order. 2 According to the case of the petitioner, the orders of the Executing Court passed on 15th June 2009 were challenged by filing a writ petition in which order of status quo was passed. The case of the petitioner is that on the very day on which ad-interim order was passed, intimation of the order of status quo was sent by the petitioner to one of his relative Mr.Pandurang Gaikwad by fax. It is stated that the said Pandurang collected the said letter sent by fax. The letter is 2 cp260 dated 23rd June 2009 issued by the Advocate for the petitioner addressed to the petitioner which records that on 23rd June 2009, an order of status quo has been passed. 3 According to the case of the petitioner at 9.30 a.m. On 24th June 2009, the said Pandurang Gaikwad handed over a copy of the said letter received by fax to the Atpadi Police station. Reliance has been placed on acknowledgment signed by the Police Authority. It is contended that at 11.00 a.m on the same day, the said letter was shown by the said Pandurang to one Shri Bhiva Shankar Bhalinge and Shri P.D.Khatavkar, Bailiffs in the Atpadi Court, and requested them not to proceed with the work of execution of the decree. It is stated that on 24th June 2009 at 4.00 p.m the Court bailiffs executed the possession warrant and dispossessed the petitioner. It is alleged that the police assistance was made available to the Court bailiffs and with the assistance of police, the petitioner was dispossessed. 4 The case made out in paragraph 5 of the petition is that at 5.00 p.m a relative of the petitioner reached the suit premises and showed the order of status quo to respondent nos.5 to 7. However, they refused to accept the same and continued the execution and possession was handed over to the decree holders at 5.30 p.m. It is alleged that the respondent no.5 who is the Police Officer and the respondent nos.6 and 7 who are the Court bailiffs have deliberately and willfully committed the breach of order of status quo. An allegation is also made of committing breach against respondent nos.1 to 3 who are the decree holders. 5 The learned counsel for the petitioner submitted 3 cp260 that on 24th June 2009 in the morning, the respondent no. 5 was aware of the order of status quo. He submitted that even the Court bailiffs were aware of order of status quo. But notwithstanding the knowledge of the order of this Court, they proceeded to execute the possession warrant. He submitted that this is a case of gross breach of the order of this Court. 6 A reply has been filed by the respondent no.5. He has stated that in terms of the letter received from the Civil Court, he had made available the Police Officers including the lady Police Officers at the time of execution. He has stated that though the letter dated 23rd June 2009 was received on 24th June 2009, it was not accompanied with the order of the Court and it was not addressed to any Police Officer. 7 I have carefully considered the submissions. In the contempt petition there is no averment to the effect that the respondent nos.1 to 3 were aware of the order of status quo. 8 Perusal of the letter dated 23rd June 2009 shows that the same was addressed to the petitioner by the Advocate for the petitioner. The letter makes no reference to the number of the execution application. The respondent no.5 had received a communication dated 19th June 2009 from the Civil Court for providing police protection for execution of the decree as per the order passed in Regular Darkhast no.40 of 2007. The letter dated 23rd June 2009 reads thus: The above referred matter was placed before Hon ble High Court on 23/6/2009. On that day after hearing the Hon ble High Court was 4 cp260 pleaded to pass `status-quo order and issued notices against the respondents returnable after two weeks. Therefore, the above said matter will come up before Hon ble High Court after two weeks. Please bring this fact to the notice of the Hon ble Executing Court and concerned Police Authorities. I will send the authenticated copy of the order dated 23/6/2009 after immediately obtaining the same. 9 Apart from the fact that the letter does not make a reference even to the number of the execution application or the number of the suit in which the decree under execution was passed, the letter does not record that in view of the order of status quo, the order passed in Regular Darkhast no.40 of 2007 cannot be acted upon. The Advocate for the petitioner has stated that the order of status quo was brought to the notice of the Executing Court and Police Authorities. The case made out by the petitioner in the petition is that at 11.00 a.m. On 24th June 2009, the relative of the petitioner went to the Executing Court and showed the letter to the Court bailiffs. The same letter dated 23rd June 2007 which is referred to above was shown to the Court Bailiffs. 10 No attempt was made to file the said letter on record of the Executing Court along with an affidavit or application and to seek appropriate consequential directions from the Executing Court. It was impossible for the Police Officer to know after reading the said letter that the order passed in the Regular Darkhast no. 40 of 207 cannot be acted upon. Same is the case with the Court Bailiffs. It is, therefore, impossible to come to the conclusion that the order of status quo was willfully or deliberately breached by any of the 5 cp260 contemnors. It is for the petitioner to apply to the Executing court for appropriate relief and in fact page 11 of the petition shows that an application has been made to the Executing court for restoration of the possession. 11 In the circumstances, no case is made out for initiating action under the Contempt of Courts Act, 1971. However, the Executing Court is bound to decide the application dated 30th June 2009 on merits. While deciding the said application, the Executing Court is bound to take into consideration ad-interim relief granted by this Court. 12 Subject to what is observed above, no case is made out for initiating action under Contempt of Courts Act, 1971. Petition is rejected. JUDGE