:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 7097 OF 2007 Shri MadhavKrishna Madhav Kulkarni ...Petitioner Versus Gulabchand Bhaichand Shah since deceased by his legal representatives ....Respondents Shri S.G.Deshmukh Adv. for the petitioners. Y.S.Shinde, Adv. for respondent nos.1B, 1C and 1D. CORAM: S.C.DHARMADHIKARI, J. 11th January, 2 008. P.C. P.C. P.C. : : : 1. Heard learned counsel appearing for the petitioner/original decree holder and learned counsel appearing for respondents 1(b), 1(c) and 1(d). 2. At the request and risk of the petitioner, :2: :2: :2: respondent no.1(E) is deleted as respondent. Mr.Deshmukh, states that the respondent no.1a has already expired. 3. The petitioner has filed a Reg.Civil Suit being Suit No. 45 of 1984 against the deceased defendant Gulabchand for possession of the suit premises. The suit premises are described in the Writ petition, so also, the decree and execution proceedings. 4. The petitioner is aggrieved and dissatisfied with an order dated 5.9.2006 and an order dated 5.4.2007 which have been passed on Application Exhibit-1 and Exhibit-80 in Regular Darkhast No.99 of 1999. The grievance of the petitioner is that by virtue of the order passed on the Darkhast on 5.4.2007, copy of the said order is annexed at page 94 of the petition paper-book, the decree holder’s application for review of the earlier order passed below Exhibit-1 is rejected. 4. The earlier order below Exhibit-1 in Reg.Darkhast No.99 of 1999 is dated 5.9.2006 i.e. :3: :3: :3: Exhibit-O page 86 of the paper-book. By that order the decree holder was directed to produce on record the extract of Municipal House No. 2483 and to suggest the name of the advocate to be appointed as Court Commissioner for bringing on record the factual position of the suit property. The other directions are incidental. 5. After this matter was argued for some time, Mr. Shinde appearing for respondent nos.1(b), 1(c) and 1(d) makes a statement that these respondents shall withdrew all their objections to the decree passed in favour of the petitioner decree holder in Reg.Civil Suit No. 45 of 1984 without prejudice to their rights to initiate appropriate proceedings with regard to their right, title and interest in the immovable property bearing Survey No. 330A. Since all objections and applications upon which the executing court passed the subject orders are withdrawn, nothing survives, insofar as, those objections are concerned. Therefore, the orders dated 5.9.2006 and 5.4.2007 are quashed and set aside by consent of parties. Regular Darkhast No. 99 of 1999 shall now proceed in accordance with law. This :4: :4: :4: however will not prejudice the respondents 1(b) to 1(d) from initiating such proceedings as are permissible in law for claiming right, title and interest in respect of the property Survey No.330A. However, Mr.Shinde appearing for these respondents, states that, fresh proceedings would be initiated within a period of two weeks from today. Needless to state, that if they are not so initiated, then the respondents would not be entitled to raise any objections to the decree in question or raise the dispute of the identity of the property covered by the judgment and decree of the Trial Court. Petition allowed. Needless to clarify that the liberty to initiate proceedings, does not mean that the respondents concerned can apply in the darkhast being Reg.Darkhast No.99 of 1999. The independent proceedings shall be substantive and not in these execution proceedings. All contention of both sides in that behalf are kept open. sd/- ********