1 W.P. 2004/2011 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2004/2011 Mukhtar Ahmed s/o Adul Rauf, Age : 45 years, Occu. Business, R/o Karim Colony, Roshangate, Sharif Colony, Aurangabad ...Petitioner. Versus 1 Abdul Sattar s/o Abdul Rauf, since deceased through his L.Rs. a) Noorjahan Begum w/o Abdul Sattar, Age : 57 years, Occu. Household. b) Shamin Banu w/o Ferozkhan, Age : 44 years, Occu. Household. c) Surraiya Banu w/o Vakil Ahmed, Age : 43 years, Occu. Household d) Gausiya Banu w/o Abdul Aziz, Age : 42 years, Occu. Household. e) Abdul Razzak s/o Abdul Sattar, Age : 34 years, Occu. Business. f) Abdul Aziz s/o Abdul Sattar, Age : 32 years, Occu. Business. g) Abdulla s/o Abdul Sattar, Age : 30 years, Occu. Business. h) Abdul Rashid s/o Abdul Sattar, Age : 28 years, Occu. Business, Through their Power of Attorney Holder Jaichand s/o Lakhmichand Sethi, Age : 50 2 W.P. 2004/2011 years, Occu. Business, Both R/o Pandariba, Tq. & Dist. Aurangabad. 2 Smt. Shakuntalabai w/o Jaichand Sethi, Age : 45 years, Occu. Household, R/o Pandariba, Aurangabad. 3 Smt. Lilabai w/o Amarchand Agrawal, Age : 45 years, Occu. Household, Through Bhikhchand s/o Amarchand Agrawal, Age : 46 years, Occu. Business, R/o Agrawal Niwas, Kiranachawadi, Aurangabad. 4 Abdul Rahim @ Babu Shaikh s/o Abdul Rauf Age : 67 years, Occu. Business, Through his Power of Attorney Holder, Lalitmohan s/o Venkatidas Choudhary, Age : 48 years, Occu. Business. 5 Abdul Gaffar s/o Abdul Rauf, Age : 44 years, Occu. Nil, Through his Power of Attorney, Nitin s/o Natwarlal Mehta, Age : 40 years, Occu. Business. 6 Riyaz Ahmed s/o Abdul Rauf, Age : 47 years, Occu. Business, R/o Motikaranja, Mondha, Aurangabad. ...Respondents. Mr. B.R. Warma, Advocate for the petitioner. Mr. A.H. Kasliwal, Advocate for respondent Nos.2. Mr. L.D. Vakil, Advocate for respondent No.1. Mr. J.M. Murkute, Advocate for respondent No.6. CORAM : A.V. NIRGUDE, J. DATED : 11th August, 2011. 3 W.P. 2004/2011 PER COURT: 1. This writ petition is filed against the order dated 22/08/2007 passed by the learned II Jt. Civil Judge, (Senior Division), Aurangabad in Special Darkhast No. 244/2000 thereby closing the proceeding of the Darkhast. The petitioner was admittedly not party to the suit which gave rise to the above mentioned Darkhast. This was a suit filed for partition of certain house property situated at Aurangabad. The suit was decreed and the judgment debtor proceeded further filing above mentioned Darkhast. During the pendency of this Darkhast, the present petitioner and one more person respondent No.6 here, moved an application to the execution Court. The case they pleaded was that although they were not party to the suit, their mother Tahera ought to have made party to the suit because she had undivided share to the suit property. They say that since their mother and through her they themselves are interested in the suit property, they would resist execution of the decree. After making this application, they persuaded learned judge of the execution court to issue notice to the other side. However, though notices were issued but none of the party to the Darkhast took cognizance of this application. As said above, on 22/08/2007 the parties to the Darkhast filed the purshis that the Darkhast is fully satisfied and they did not want to proceed with it. With this, the learned judge closed the proceeding. The petitioner and the respondent No.6 felt aggrieved. They thought that their application was ignored without there being any judicial inquiry into it. That is why the petitioner preferred this writ petition and sought a direction to the court below that the learned judge should 4 W.P. 2004/2011 decide their application. 2. The learned advocate appearing for the petitioner tried to contend that this application would fall within the ambit of S. 47 Order 21 of the C.P.C.. The provisions are mentioned below. 47. Questions to be determined by the Court executing decree? (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. O. XXI, R. 101 : Question to be determined:- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. 3. By no stretch of imagination, this application can be said to be an application relating to the execution of the decree. The petitioner and his brother respondent No.6 are admittedly not in possession of the suit property. They have, according to them, certain share in the suit property. So, even if the execution takes place of the decree in the suit, their right (assuming but not admitting) to the property will not get extinguished. Their right is certainly alien to the execution of the decree and therefore, the application of the petitioner and his brother was not relating to the execution of the decree. Rule 97 clearly mentions that such an application can be made by a person other than parties to the decree who is in possession of the suit property. As said above, since the petitioner and his brother are not in possession, they could not have moved this application on the very day. As soon 5 W.P. 2004/2011 as the application was filed, learned judge ought to have rejected it. Since it was not done, I would do it. The learned advocate appearing for the petitioner despite of repeated requests, did not show any judgment in support of his submission. ORDER Writ petition stands dismissed. [A.V. NIRGUDE,J.] ts k/2011/August11/wp2004.11/ok