wp3363.11.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.3363/2011 Sham Dattatraya Ghodke and another -vs- Sakharam Pandurang Wawre and another ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri R.G.Kavimandan, counsel for the petitioners. Shri K. P. Sadavarte, counsel for the respondents. CORAM : SMT. VASANTI A. NAIK, J. DATE : 14.09.2011. By this petition, the petitioners impugn the order passed by the executing Court on 14/02/2011 rejecting an application filed by the petitioners under Section 47 read with Section 151 of the Code of Civil Procedure asking the executing Court to determine the points involved in the case and pass appropriate order. The petitioner No.1 had filed a suit for permanent injunction against Pandurang and his son Sakharam, the respondent No.1 to this petition, restraining them from dispossessing the petitioner No.1 except by following the due process of law. It was the case of the petitioner No.1 that Sakharam had entered into an agreement of sale with the petitioner No.1 on 03/02/1988 and the petitioner No.1 was put in possession of the suit property in pursuance of the said agreement. The trial Court decreed the suit filed by the petitioner No.1 on 17/10/2000. wp3363.11.odt 2/3 Since the respondent No.1 and his father Pandurang were permanently injuncted from disturbing the possession of the petitioner No.1 except by following the due process of law, Pandurang filed a suit for eviction and possession against the petitioners and the said suit was decreed by the judgment and decree dated 14/10/2003. The trial Court held in Regular Civil Suit No.7/2000 filed by Pandurang that Pandurang was entitled to possession of the suit plot. In pursuance of the decree passed on 14/10/2003, Pandurang filed execution proceedings vide Regular Darkhast No.1/2009. During the pendency of the execution proceedings, Pandurang died and his legal heirs were brought on record. Sakharam, the respondent No.1 was also brought on record as one of the legal heirs of deceased Pandurang. After the legal heirs were brought on record, an application was filed by the petitioners under Section 47 read with Section 151 of the Code of Civil Procedure praying for determination of the issues involved in the matter regarding Sakharam, the respondent No.1 being estopped from challenging the agreement of sale entered into between the petitioner No.1 and the original defendants as according to the petitioners, Sakharam had become the owner of the property. The executing Court, however, by the impugned order dated 14/02/2011 rejected the application filed by the petitioners. On hearing the learned counsel for the parties and on perusal of the impugned order, it appears that the executing Court was justified in dismissing the application filed by the wp3363.11.odt 3/3 petitioners as the issues which were sought to be decided by the executing Court were already decided by the trial Court in the suit filed by Pandurang for eviction and possession of the petitioners. The executing Court observed that the points, raised by the petitioners in the application under Section 47 read with Section 151 of the Code of Civil Procedure, were raised by the petitioners in the civil suit filed by Pandurang and they had failed to prove the points which they sought to raise in the execution proceedings. The executing Court rightly observed that the issues raised by the petitioners were not relating to the execution, discharge or satisfaction of the decree as the said issues were decided by the trial Court in the suit filed by Pandurang. The objection raised by the petitioners in the application filed under Section 47 read with Section 151 of the Code of Civil Procedure appears to be frivolous and was raised merely with a view to protract the execution proceedings. The judgment reported in AIR 2007 Supreme Court 1058 and relied on by the counsel for the petitioners for canvassing that the doctrine of feeding the estoppel applies in this case is not relevant for deciding the issues involved in the case and is not applicable to the facts of this case. Hence, the writ petition is dismissed with no order as to costs. JUDGE KHUNTE