1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5070 OF 2009 Prasad s/o Khushalchand Katariya ..Petitioner versus Shaikh Ajij ul-Haq Abdul Kadar ... Shri S.V. Gangapurwala, advocate for Petitioner. Shri D.D. Pokharkar, advocate for respondent. .... CORAM : B.R. GAVAI, J. DATE : 17/11/2009. PER COURT : 1. By way of this writ petition, the petitioner challenges the order dated 20-04-2009 passed below Ex. 37 in Regular Darkhast No. 251/1998 by which application filed by present petitioner for handing over possession of the suit property by removing of the shed has been rejected. 2. Admittedly, Regular Civil Suit No. 128/1992, filed by the present petitioner for possession, rent arrears and damages, has been decreed by the learned Joint Civil Judge (J.D.), Sangamner. It is also not in dispute that the said decree has achieved finality. For execution of the said decree, execution proceeding came to be filed by the present petitioner vide Regular Darkhast No. 251/1998. In the said proceeding, warrant of possession was issued. 2 3. When the bailiff went to execute possession warrant, he could not execute the said warrant. Accordingly, the report was submitted by him that as in the property for which decree was passed, there was tin shed and shed was was locked, he could not execute the decree. Accordingly, the application came to be filed by present petitioner for removal of the said lock and giving possession of the same premises to him. Said application is rejected on the ground that the executing court can not go beyond the decree. 4. Admittedly, the area and description of the land has been referred to in the decree passed by learned trial court. The only question is as to whether the tin shed erected by the respondent / Judgment debtor is on the land for which decree is passed or outside the land. It is the contention of the petitioner that the said construction is on the land for which decree is passed whereas it is contention of respondent that, it is on the Government land which is outside the land for which decree is passed. When decree is passed by the competent court, it has to be executed in it’s true spirit. It is also settled law that all the questions between the parties are to be decided in execution proceeding itself. The dimension of the land for which decree is passed is not in dispute. Accordingly, the parties have filed terms of compromise before this Court. According to the said terms, measurement of the suit site has to be carried out and if after measurement it is found that the shed is on C.T.S. No. 4887 i. e. the land for which decree is passed, suitable order are to be passed by the executing court for possession. The said terms of compromise are duly signed by the parties and their counsels. Same are taken on record and marked X for identification. 5. In the result, impugned order is quashed and set aside. The matter 3 is remitted to the executing court with direction to appoint City Survey Officer for carrying out the inspection and measurement of the suit site in the presence of the parties. The petitioner shall bear expenses towards the cost of the said commission. It is made clear that, if it is found that the construction of the respondent / Judgment debtor is on the area of the land for which decree is passed, necessary order for handing over peaceful possession thereof shall be passed by the learned executing court. Rule is made absolute. No order as to cost. B.R. GAVAI, J tsk/WP5070.09