1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4611 OF 2008. Dnyanoba S/o Govindrao Chamale ... Petitioner. Versus Shivaji Graha Nirman Sahakari Sanstha Ltd.,Udgir through its Chairman Chandrakant Narayanrao Mukkawar and others ... Respondents. ... Mr.A.V.Patil, advocate for the petitioner. Mr.B.A.Dhengle, advocate holding for Mr.S.S.Pawar, advocate for Respondent No.1 Mr.N.G.Kale, advocate for the Respondent No.1-B Mr.R.B.Narwade Patil, advocate for the Respondent No.1C. Mr.A.M.Gaikwad, advocate for the Respondent No.1- A. Respondent Nos.2 to 6 served. ... CORAM : V.R.KINGAONKAR,J. Date : 30.06.2009. PER COURT 1. Leave to delete names of formal parties. 2 2. By this petition, the petitioner challenges order dated 3.4.2008, rendered on application (Exh.32) in R.D.No.3/1999, by the learned Civil Judge (J.D.), Udgir. 3. There was dispute raised by the petitioner in respect of non-allotment of plot by the Respondent No.1 Housing Society. He submitted that he was member of the Cooperative Housing Society. He contended that there were 42 plots drawn in the open space owned by the Respondent No.1 Cooperative Housing Society and while effecting distribution, he was denied the accommodation. The allotment was only of 41 plots. The Cooperative Court rendered decree in his favour. The decree was sent to the Civil Court, Udgir for execution. 4. An objection petition (Exh.32) filed by the Respondents on the ground that the decree has become inexecutable and possession warrant can not be issued against the Respondent No.1 - Cooperative Housing Society. It was contended that there was no open space left and the decree 3 rendered by the Cooperative Court is quite vague and hence, it is inexecutable. 5. The report of the bailiff indicated that there was encroachment on some part of the open space of the Respondent No.1 Cooperative Housing Society. 6. Heard learned counsel. 7. It is true that the petitioner did not specify boundaries of his plot. It is quite true that identity of the plot claimed by him could not be ascertained. At the same time, it can not be overlooked that grievance of the petitioner was that while making the allotment, his claim was given go-by. He approached the Cooperative Court with a specific case that 41 plots were allotted, whereas he was denied the plot though he is member of the Cooperative Housing Society. Needless to say, what he was claiming is the remaining plot and, therefore, excluding the 41 plots allotted to other members, the area of the remaining plots ought to have been ascertained by 4 the Executing Court. For this purpose, the copy of layout plan could have been called. The vague report of the bailiff that there is encroachment on the open space of the Respondent No.1 Society should not have deterred the Executing Court from proceeding with the process of execution. 8. The principle "Ubi jus ibi idem remedium" is squarely attracted in such a situation. The petitioner is armed with a decree for possession of the plot. He fought the claim before the competent Court up to logical end. Ordinarily, he can not be deprived of the fruits of the decree unless, it is extremely difficult to execute the same. The learned Civil Judge ought to have verified the fact situation from the lay out plan and if encroachment is found, the same is required to be removed with the Police help. The petitioner is at liberty to apply for Police aid after pointing out the area of remaining plot. And place the copy of lay out plan on record. The petitioner can obtain copy of the sanctioned lay out plan by taking recourse to the provisions of the Right to Information Act. 5 In this view of the matter, the impugned order is unsustainable. The petitioner shall be given afresh opportunity to pin point identity of the remaining plot which can be allotted to him and thereafter, if necessary, the encroachment may be removed if the same is noticed. The Executing Court may also consider whether compensation can be granted to the petitioner, under provisions of the law, in execution of the decree. All questions are kept open. 9. In the result, the petition is allowed. The impugned order is quashed with direction that the Executing Court shall restore the Execution Petition to its original place and shall decide the same afresh after giving the petitioner due opportunity to point out identity of the plot for which he is taking the claim. (V.R.KINGAONKAR,J.) asp/office/wp461108