1 WP No.3495/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.3495 of 2010 Chandrakant Kantilal Gavali & Anr ... Petitioners versus Dharamaraj Tukaram Bhosale since deceased Purshottam Dharmaraj Bhosale & ors. ... Respondents ... Mr. Surel S. Shah for the petitioner. Mr.A.Y.Sakhare, Sr. Advocate with Siddharth Karpe i/b YKS Legal for respondent nos.1A to 1E. CORAM : D.G. KARNIK, J. DATED : 21st July 2010 P.C. 1. By this petition, petitioners challenge the order dated 25 February 2010 passed by the learned Joint Civil Judge, Jr. Division, Madha on an application by the respondent-decree holder for issuance of a possession warrant by removing the obstruction of the petitioners. 2 WP No.3495/10 2. Petitioner no.1 is the grand son of the original judgment debtor Laxman Gavli. Petitioner no.2 is the mother of petitioner no.1. In a suit bearing Suit No.184/81 filed by the respondent against his tenant Laxman Gavli, a decree for possession was passed by the Civil Judge, Jr. Division, Solapur and was confirmed in an appeal by the District Court on 7 August 1992. Writ Petition No.4235/92 filed by Laxman challenging the decree was dismissed on 12 January 1995. The decree holder (ancestor of the respondents) filed an execution petition bearing Regular Darkhast No.88/95 against Laxman for executing the decree. Possession warrant was issued on 20 April 1998. It appears that Laxman died on the very day on which the possession warrant was issued. When the bailiff went for execution of a possession warrant, the petitioner no.1, who is a grand son of original judgment debtor Laxman, resisted the bailiff from executing the warrant. Thereupon the decree holder applied to the executing court for removal of the obstruction and issuance of a fresh possession warrant. By an order dated 25 February 2010, the learned Judge allowed the application and directed issuance of the warrant against the petitioner. 3. Relying upon the decisions of the Supreme Court in Tanzeem Sufia Vs. Bibi Haliman, (2002) 7 SCC 50 and in Shreenath vs. Rajesh, (1998) 4 SCC 543, learned counsel for the petitioner submitted that since an obstruction was raised by the petitioner no.1, the executing court was bound to follow the procedure for 3 WP No.3495/10 removal of an obstruction as provided under Rules 98 to 102 of Order 21 of the Code of Civil Procedure (for short “the Code”) The trial Court ought to have tried the application of the respondent for removal of the obstruction as a suit and not in a summary manner. The order passed for removal of an obstruction and issuance of a possession warrant by holding a summary inquiry was illegal. 4. In Tanzeem-E-Sufia Vs. Bibi Haliman (supra) the Hon’ble Supreme Court has held that when an execution of a decree for possession is resisted or obstructed by a person in possession of a property, the decree holder has to make an application for removal of obstruction under Order 21 Rule 97 of the Code of Civil Procedure. Even earlier, in Shreenath Vs. Rajesh, the Hon’ble Supreme court has held that Order 21 Rule 97 conceives of resistance or obstruction to the execution of a decree for possession of immovable property made by any person whether he is bound by the decree or claiming title through the judgment debtor or claiming an independent right including a tenant not a party to the suit, or even by a stranger. 5. In the light of the decision of the Supreme Court, there can be no doubt that when execution of a decree for possession of immovable property is resisted or obstructed by a person in possession, the decree holder is required to make an application for removal of the obstruction under Order 21 Rule 97 of the Code 4 WP No.3495/10 of Civil Procedure. In the present case also, respondents had made the application for removal of obstruction and issuance of a warrant afresh. The only grievance of the petitioners is that the application for removal of an obstruction and issuance of a fresh possession warrant was heard and decided by the learned Judge of the executing court in a summary manner and not as a suit. In the light of submissions of the petitioners, the only issue that is required to be considered is whether the procedure adopted by the executing court in hearing and deciding the application for removal of an obstruction was proper. 6. Sub-rule(2) of Rule 97 of the Code provides that where an application (removal of an obstruction) is made under sub-rule (1) the Court shall proceed to adjudicate upon the application in accordance with the provisions therein contained. Rule 101 of Order 21 of the Code says that all questions (including questions relating to right, title or interest in the suit property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything contained to the contrary in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. Strongly relying upon Rule 101, learned counsel for the petitioners submitted that since questions of the alleged right and interest of 5 WP No.3495/10 the petitioners was required to be decided by the executing court itself and not by a separate suit, the Court ought to have followed the procedure of the suit for determination of the rights of the petitioners. In my view, all that Rule 101 provides is that the questions arising between the decree holder and obstruction of a decree would be decided by an executing court and not by a separate suit. It does not provide that a procedure of a suit shall be followed for decision of that question. In my view, the procedure required to be followed for the decision would depend upon the nature of the right claimed by the obstructionist. No hard and fast rule can be laid down about the procedure to be followed. 7. In the present case, petitioner no.2 is the daughter in law (widow of the son of original judgment debtor) and petitioner no. 1 is the grand son of the original judgment debtor. They are the heirs and legal representatives of the original judgment debtor. They therefore do not have any independent right in the property. In fact, no material was produced by them to show that they had any independent right in the property. In the circumstances, no fault can be found with the summary procedure followed by the learned Judge in deciding the application for removal of the obstruction. 8. There is no merit in the writ petition which is hereby rejected summarily. The learned trial Court shall proceed with the 6 WP No.3495/10 execution of the possession warrant forthwith. 9. Learned counsel for the petitioner prays that the warrant of possession should not be executed for a period of four weeks. Suit was instituted in the year 1981. Initial decree was passed in the year 1988. The decree holder has not been able to execute the decree for more than 22 years after the initial decree. In such circumstances, the request cannot be granted and is rejected. (D.G. KARNIK,J.)