1 wp8724.10 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 8724 OF 2010 _____________________________________________________________________ Office Notes, Office | Memoranda of Coram, | appearances, Court's | Court’s or Judge’s orders orders or | directions and | Registrar's orders | _____________________________________________________________________ Mr. D.K. Kulkarni, Advocate for the petitioner. Mr. S.S. Choudhari, Advocate for respondent. 1. Heard finally. By the impugned order dated 10th March, 2010 passed below Exhibit-1 in Regular Darkast no. 44 of 2001, the Executing Court has directed the parties to argue the matter as it found that there are some sisters entitled to share upon the partition. 2. Advocate Mr. Kulkarni for the petitioner states that this order is passed suo-moto and not upon any objection raised either by the sisters or judgment-debtor. He invites attention to the earlier orders passed by the learned Single Judge of this Court delivered on 11th December, 2008 in Second Appeal No. 157 of 2008, to urge that the suit was on the basis of partition deed and the possession was sought from the judgment debtor on the basis of that document. He further points out that the findings recorded 2 wp8724.10 therein in paragraph no.7 was assailed before the Hon'ble Apex Court and the Hon'ble Apex Court has on 01.04.2010 dismissed the S.L.P. He therefore states that it is not open for the Executing Court to go behind the decree in this manner. 3. Advocate Mr. Chaudhari for respondent has invited attention to the facts noted by the Executing Court particularly in paragraph no. 3 of the impugned order. He points out that the Executing Court found that there were three sisters and they were not parties to this suit or to the decree being executed. As the sisters are found prima facie entitled to share upon the partition the direction has been given by the executing Court. He further points out that those sisters have filed independent suits for partition and separate possession. 4. Perusal of the orders passed by this Court dated 11th December, 2008 in the Second Appeal No. 157 of 2008 reveals that the present judgment-debtor had raised objection to decree on the ground of non-joinder of necessary parties. This Court found that suit was for recovery of possession of the property on the strength of the memorandum of partition and if the sisters had any grievance, it was open to them to raise challenge in accordance with law. This order of learned Single Judge was then assailed before the Hon'ble Apex Court and has been maintained on 01.04.2010. 3 wp8724.10 5. It is attempted to show that the sisters have not raised any objection in the execution proceedings. In view of the findings recorded by the learned Single Judge and maintained by the Hon'ble Apex Court availability of sisters in family could not have been reason for executing court not to execute the decree or then to direct the parties to argue the case. The Executing Court could not have travelled beyond the decree in the matter. 6. I therefore find that the said exercise by Executing Court unsustainable in the light of earlier orders. The order dated 10th March, 2010 is therefore quashed and set aside. The Executing Court to proceed further in accordance with law in the matter. Rule is made absolute. No costs. (B.P. DHARMADHIKARI) JUDGE. 18.02.2011 gas/wp8724.10