kbp 1 4482-04.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBA CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4482 OF 2004 Iqbal Fakir Mohd. Shaikh ..Petitioner Vs. Shantabai Tukaram Jadhav and ors. ..Respondents ......... Mr.Nusrat Shah a/w.Ms.Pervin D.Contractor, Mr.A.K.Gupta, Ms.Ema Almeida & MrSayed Zia i/b.MrS.A.Momin, for the petitioner. Ms.S.U.Deshmukh, for respondent no.3. ......... CORAM : A.S.OKA, J.. DATE : 1 st OCTOBER, 2009. P.C. : 1] Heard learned counsel for the petitioner. 2] Learned counsel for the third respondent states that she has repeatedly written to the third respondent, however, said respondent has not responded. She states that a letter sent by post to the third respondent has came back with endorsement “left”. She states that she has not received any instructions from the third respondent. Therefore, she seeks time. Time cannot be granted as the petition is of the year 2004. Hence, the said prayer is rejected. 3] On 4 th August, 2004, notice for final disposal was issued by this court. There is a decree for specific performance passed by the trial court in favour of the petitioner. The said decree is a compromise decree which directs the kbp 2 4482-04.sxw respondents to execute a conveyance in respect of the suit property within a period of two months from the date of the decree. An execution application was filed by the petitioner. By the impugned order, the said execution application has been dismissed by the trial court by holding that the decree is not capable of being executed as there is no permission granted under Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948 for execution of a conveyance. 4] After hearing learned counsel for the petitioner, I find that the executing court has committed an error by dismissing the execution application on the ground that the decree is not capable of being executed. Learned trial Judge has completely overlooked clause 4 of the consent decree passed in the suit. The said clause enjoins the respondents/defendants to obtain requisite permission for execution for sale deed. In view of the said clause, the executing court should have appointed a Court Commissioner with a direction to the Court Commissioner to apply for permission for sale. The decree of execution of conveyance could have been executed if the permission to sell the suit property was granted by the competent authority. Therefore, the observation of the trial court that the decree cannot be executed appears to be completely erroneous. Only if permission to transfer is finally rejected, it can be said that the decree is not executable. 5] Hence, the petition must succeed and the execution application will have kbp 3 4482-04.sxw to be restored. Hence, I pass the following order: (a) Impugned order dated 15 th March, 1999 is quashed and set aside and Special Darkhast No.24 of 1998 is restored to the file of executing court. (b) It will be open for the petitioner to apply for appointment of the Court Commissioner with a direction to the Court Commissioner to apply for permission for sale. If such an application is made, the trial court shall pass an appropriate order thereon in accordance with the observations made in this order. (c) It is made clear that the decree can be executed provided a permission of the competent authority for sale is obtained. (d) Writ Petition is allowed in above terms with no order as to the costs. ( A.S.OKA, J. )