1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. WRIT PETITION NO.5655 OF 2007. Gokarnabai Vishwanath Patil and others .vs. Chandrabhaga Radhakisan Rathi and others. -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. Smt.Suman Chokhare, Adv. for the petitioners. Mr.R.L.Khapre, Adv. for the respondents. Coram: J.H.BHATIA,J. Dated : 14th JANUARY, 2009. 1. Heard the learned counsel for the parties. 2. Respondents no.9 to 12 are the legal hairs of the original mortgagee while respondents no.1 to 7 are said to be the legal heirs of original mortgagor. A decree of foreclosure was obtained by the predecessor of respondents no.9 to 12. A certificate was issued in that respect by the 2 Collector. However, execution of that certificate was kept in abeyance till Notification No.L.No.26(1971)RB XIII dated 25/2/1971 regarding Enforcement of the Bombay Execution of the Decree (temporary postponement) Act is cancelled. It means the said certificate could not be executed pending that Notification. Earlier the decree holders i.e the mortgagees had filed one execution proceeding which was disposed of or rejected on the ground that the decree holder could not produce any material to show that the said notification was cancelled or vacated. Thereafter, a second regular Darkast No.12/84 has been filed by the decree holders. The objection was taken by the judgment debtor that in view of the rejection of earlier Darkast, this Darkast is not tenable. By the impugned order dated 3/9/2007, the learned executing court rejected the objection because the first Darkast was disposed of or rejected merely because there was no material to show that the notification of 1971 was cancelled or vacated. That does not debar the decree holder to file the fresh execution proceeding if they can point out that said 3 notification has been cancelled or vacated. 3. It appears that in the later execution proceeding the decree holders pointed out that the decree has been partly executed and they wanted to show that the stay of the 1971 notification does not operate any more. In view of this, the objection was rejected and the learned executing court directed that matter be listed for further hearing on the prayer of decree holder to issue possession warrant against the judgment debtors. The present petitioners are neither the decree holder nor the judgment debtors. They claim to be the third party in possession on the ground that they were inducted as a tenants and they have been declared as purchasers. In fact, the executing court has not passed any order regarding their objection. If petitioners have any objection on the basis of their own rights, may be under the Tenancy Act, that objection can be taken before the executing court. Instead of that, the petitioners have challenged the impugned order in this writ petition which they could not. 4 4. Taking into consideration the above circumstances, the writ petition stands dismissed. However, the petitioners are at liberty to raise third party objection before the executing court which shall be decided on merits as per law by the executing court. JUDGE. chute