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 CIVIL CIVIL CIVIL WRIT PETITION NO. 19 OF 2009 WRIT PETITION NO. 19 OF 2009 WRIT PETITION NO. 19 OF 2009 Shri Pandharinath Krishna Raikar ] since deceased through his L.R. ] .. Petitioners Versus 1. Laxman D. Watvisawe & ors. ] .. Respondents Mr. A.V. Anturkar i/b Mr. Sugandh Deshmukh for the petitioners. Mr. V.P. Malwankar, AGP, for the respondent No.2. CORAM: S.B. MHASE & D.B. BHOSALE, JJ. DATED: 7TH JANUARY, 2009 P.C. : 1. Heard. 2. Mr. A.V. Anturkar, the learned counsel for the petitioner craves leave to delete the respondents No.1, 1a), 1b), 1c) and 1c(i), 1c(ii) and 1c(iii) and 1c(iv). Accordingly, leave is granted to the petitioners to delete the said respondents from the array of parties. 3. The petitioner has filed Civil Suit No.517 of 1979 before the IIIrd Joint Civil Judge, Junior : 2 : Division, Pune, for specific performance. It was decided exparte on 4th November, 1988, and decree was passed in favour of the petitioner. The decree states thus: On payment of Rs.3,980/-, the balance amount as per the agreement to sale dated 18th December, 1973, by the plaintiff (petitioner) to the defendant, the defendant to execute the sale deed in favour of the plaintiff in respect of the suit land described in the plaint, paragraph 1. On receiving of necessary permission to sell the suit land from the competent authority, the defendant is to execute the sale deed as per the contract. 4. Rest part of the decree is not relevant at this stage. An appeal was filed challenging this decree. However, there was a delay in filing the appeal and, therefore, the judgment debtor filed Miscellaneous Civil Application No.252 of 2007 before the District Judge, Pune, seeking condonation of delay. The said application was contested on merit and by order dated 13th June, 2007, the District Judge-7, Pune, rejected the said application. As a result, the appeal came : 3 : under the category of "rejected appeals". 5. Thereafter, the judgment debtor filed a Writ Petition No.6340 of 2007 before this court which was considered by the single Judge of this court and was rejected by an order dated 27th February, 2008. The reason for rejection was that inspite of the death of the sole respondent, no steps were taken to bring the heirs and legal representatives of the deceased respondent on record and, therefore, the Writ Petition was dismissed as abated. The result is that no proceedings were pending in this court in respect of the condonation of delay in filing the appeal and the appeal stands concluded as "rejected appeal". 6. Since, for execution of the sale deed as per the decree, the permission of the competent authority was necessary and it was found that the land in question was initially an inferior watan land which was re-granted on a new tenure to the respondents, the sale of the said land cannot take place unless the permission from the collector is obtained after converting the said land into the old tenure. Thereafter, on behalf of the decree holder, the commissioner appointed by the civil court in the execution petition made an application dated 3rd October, 2005, for obtaining permission. : 4 : However, the said application was disposed of by merely passing an order "filed" by the collector. 7. Mr. Anturkar, learned counsel for the petitioner states that such an order was passed by the collector because at that time Writ Petition No.6340 of 2007 was pending before this court. What we find is that when in the execution proceeding the commissioner was appointed to execute the sale deed on behalf of the judgment debtor and in accordance with the decree the commissioner appointed by the court makes an application for obtaining permission to execute the sale deed, unless and until there is stay from any court, the execution proceeding cannot be stayed and it proceeds. Whatever the commissioner was doing was in pursuance of the execution and, therefore, the collector was bound to consider the said application. He could have only avoided consideration of the said application only if there had been a stay order from the Writ Petition and/or from the appellate court viz. Pune District Court and, therefore, the act of the collector of simply "filing" the application without deciding the same as prayed for by the commissioner appointed in the execution petition, is an illegal act. It is indeed a positive omission on the part of the Executive by not exercising the powers vested in its authority and such a : 5 : conduct cannot be appreciated by this court. 8. We, therefore, allow the Writ Petition in the following terms. [a] We restore the application dated 3rd October, 2005, to the file of the collector and we direct the collector to decide the said application on its own merit, after hearing the parties to the proceedings. [b] The collector shall decide the said application within a period of three months from the date of receipt of this order. [c] The collector shall pass a reasoned, speaking order while deciding the said application. 9. Writ Petition, accordingly, stands disposed of. Sd/- Sd/- [D.B. [D.B. [D.B. BHOSALE, J.] BHOSALE, J.] BHOSALE, J.] [S.B. [S.B. [S.B. MHASE, J.] MHASE, J.] MHASE, J.]