jpc wp6798-11.sxw 1 IN THE HIGH Court OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6798 OF 2011 Ankush Dyanu Chavan ... Petitioner Versus Aannasaheb Haibati Patil ... Respondent and others Ms. Taniya Dayal i/by M/s J. Shekhar & Co. for the petitioner CORAM: R. M. SAVANT, J. DATED : 16th November, 2011 P.C. : 1. The above Petition takes exception to order dated 29th June, 2011 by which order Exh. 61 came to be rejected by the Executing Court. The Respondents herein claim tenancy right in respect of the property owned by the Judgment Debtor in Regular Civil Suit No. 121 of 1991. The decree in the said suit is dated 21st July, 1994. The decree was put in execution by Respondent no.1 herein who is Decree Holder by filing Regular Darkhast No. 85 of 2006 before the learned Civil Judge, Junior Division Kavathemahankal. In the said Execution Application, the Petitioner filed two Applications at Exh.57 and Exh.61. 2. In so far as Exh.57 is concerned, the said application was filed jpc wp6798-11.sxw 2 for impleadment as third party in the said execution proceedings on the ground that the petitioner has taken five rooms in the property in question on rent on yearly basis from the Judgment Debtor. The substratum of Application Exh.61 was also the same for opposing the execution of decree. The said Application Exh.57 was considered by the Executing Court. The Executing Court rejected the said application, inter alia, taking into consideration the fact that when the Bailiff went for execution of the possession warrant, which came to be issued in the said execution proceeding, the same was obstructed by only the Judgment debtor and accordingly a Panchanama was prepared and the report was submitted. The bailiff report did not show the Petitioner who is the applicant having obstructed the execution. The Executing Court also took into consideration the fact that the Petitioner herein had not approached the Executing Court with an independent right, title or interest in the decreetal property nor was he praying for adverse possession. The Executing Court recorded that though it was the case of the applicant that he had taken the property on rent on early basis, he had not produced any agreement to that effect. The Executing Court also considered the fact that if at all the applicant was inducted by the judgment debtor, same was without the permission of the Court. The Executing Court, relied upon the judgment of the Apex Court in the case jpc wp6798-11.sxw 3 of V.Gangadhar Vs. B.G. Rajlingam reported in AIR 1996 SC 780 wherein the Apex Court has held that it is not necessary that the tenant should be made party to the suit when the construction was made pending suit and the tenants were inducted into possession without leave of the court since it is settled law that a tenant who claims title, right or interest in the property through the judgment debtor or under the colour of interest through him, he is bound by the decree and that, therefore, the tenant need not eonominee be impleaded as a party defendant to the suit nor it be an impediment to remove obstruction put up by them to deliver possession to the decree. What is relevant is only a warning by the bailiff to deliver peaceful possession and if they cause obstruction, the bailiff is entitled to remove the obstruction; cause the construction demolished and deliver vacant possession to the decree holder in terms of the decree. The Executing Court, accordingly rejected the said application Exh.57 for impleadment. 3. In so far as Exh.61 was concerned, it was an application under order 21 Rule 97. Since the substratum of the case in both the applications was the same, the Excecuting Court was of the view that in view of the order passed on Exh.57, the application Exh.61 would have to be rejected. In my view, no fault can be found with the reasoning of jpc wp6798-11.sxw 4 the executing Court in rejecting the application Exh. 61 on the basis of the order passed on Exh.57. 4. It is required to be noted that the execution of the decree has been sought to be protracted by the Petitioner on one pretext or other. The above Petition has also appeared for admission from time to time. By an order dated 18th October, 2011, this Petition was adjourned to enable the learned counsel for the Petitioner to produce the bailiff’s report. However, in spite of time sought, no such report has been produced and a feeble excuse is sought to be given that the Petitioner is in the process of procuring the same. Not only that prior to the filing of the present petition it appears that the petitioner had filed an Application Exh.73 for staying the execution of decree on the ground that the Petitioner wanted to challenge the orders passed on Exh.57 and Exh.67 by filing proceedings in this Court. The said application also came to be rejected by the Executing Court by order dated 1st July, 2011 for the identical reasons as those mentioned for rejecting application Exh.57. 5. As indicated above, every attempt has been made to stall the execution of the decree in question which has been passed as long as jpc wp6798-11.sxw 5 back in the year 1994. In the light of the orders passed on Exh.57 and Exh.61 as also the orders on Exh.73, though not challenged, in my view, there is no merit in the above Petition, which is accordingly dismissed. (R. M. SAVANT, J.)