1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 6636 OF 2010 Shri Pradeep s/o Gangaram Ghanekar & others .. PETITIONERS VERSUS Sau. Pramila w/o Madhukar Bhavskar .. RESPONDENT Mr. P.P. Dhorde, advocate for the petitioners. ===== CORAM : R. M. BORDE, J. DATE : 7 th SEPTEMBER, 2010. PER COURT : 1 Petitioners herein are raising exception to the order passed below exh. 72 presented by the decree holder requesting the court to recall the order passed below exh. 65 earlier. Respondent is the land lord who has secured a decree in respect of eviction against the petitioner / judgment debtor. After demise of the original defendant, legal heirs of deceased defendant are brought on record. The legal heirs after their incorporation in the proceeding for execution tendered an application that the land lord has 2 executed fresh oral tenancy agreement with them to the effect that their possession over the suit premises is in their capacity as the tenant. It is also contended by them that they have presented separate suit bearing Regular Civil Suit no. 108/2006 claiming declaration in that regard. Application at exh. 65 was presented in pending darkhast requesting the court to stay the execution proceeding until decision of the claim raised in separate suit by the legal heirs of the judgment debtor i.e. the petitioners herein. The executing court passed order below exh. 65 and directed stay of execution proceeding until disposal of Regular Civil Suit no. 108/2006. It further transpires that an application was tendered in Regular Civil Suit no. 108/2006 claiming temporary injunction restraining the defendants from securing possession of the property and executing the decree against the plaintiff. 2 Trial court initially granted injunction against the defendant / respondent herein restraining him from dispossessing the plaintiffs / petitioners herein without following due procedure of law, till final disposal of the suit. Order passed below exh. 6 by the trial court in Regular Civil Suit no. 108/2006 was subjected to challenge in Misc. Appeal no. 102/2006 presented by the decree holder i.e. respondent herein. Misc. Appeal presented by the decree holder / respondent herein was allowed by the District Judge – 2, 3 Jalgaon on 1-3-2008 and the order passed below exh. 6 in Regular Civil Suit no. 108/2006 on 28-8-2006 came to be quashed and set aside. In view of order passed by the District Judge in Misc. Appeal no. 102/2006, respondent i.e. original decree holder requested the executing court to set aside the order passed below exh. 65 earlier. The executing court on consideration of the order passed by the District Court in Misc. Appeal no. 102/2006 has allowed the application and directed revocation of the order passed below exh. 65. 3 I have perused order passed by the trial court below application exh. 65. Since the request made by the petitioner for safeguarding protection of their possession during continuance of the suit i.e. Regular Civil Suuit no. 108/2006 has been turned down in Misc. Appeal no. 102/2006, the executing court was justified in invoking he order passed below exh. 65 earlier and further directing to proceed with the execution proceeding. I do not find any error in the order passed by the executing court. In exercise of powers conferred under Article 227 of the Constitution of India, no interference is called for in the instant petition. Petition is devoid of substance hence stands rejected. 4 4 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/wp6636.10.odt