1 1. FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.3980/2010. (Sampat Ambadas Thorat Vs. Vikram Sampat Thorat and Ors.) ----------------------------------------------------------------------------------------------------------- Office notes, office Memoranda of Coram,appearances, Court’s orders Court’s or Judge’s orders. or directions and Registrar’s orders ----------------------------------------------------------------------------------------------------------- Mr.Mukul Kulkarni, Adv. for petitioner; Mr.RP Dhase, Adv. for Resp.Nos. 1 and 2; *** CORAM : K.U.CHANDIWAL ,J. DATE : 4 th October, 2010. ... 1) Heard. 2) Plaintiffs (Respondent Nos.1 and 2 herein) the decree holder moved execution application being Regular Darkhast No.38/2009 before the learned Civil Judge, Junior Division, Kallam and by order dated 17.4.2010, the learned Executing Court directed the JD no.1 to deposit Rs. 33,093/- of 1/6th and 1/12th share of decree holder Nos. 1 and 2 out of total amount received or receivable from the sugar factory to the tune of Rs. 1,32,332/-. This is questioned by 2 the Judgment debtor. 3) Mr.Kulkarni, learned counsel for the petitioners/judgment debtors, points that the controversy between the parties indeed is settled by virtue of Judgments of this Court flowing in the decree. The challenge, before the learned District Judge in Regular Civil Appeal No. 175/1997 where the defendant/judgment debtor, has lost. Even in Second Appeal No.894/2009, the judgment debtor has lost on 15.12.2008. Mr.Kulkarni submits, even if the judgment debtor has lost at three levels, however, the decree by its impact and enforcement will not be permitted to be travelled beyond the operative part of the order, referred at page 29 of the petition, which reads as under: “(1) The suit of plaintiffs is partly decreed with costs. (2) The plaintiff No.1 and 2 are entitled for recovery of 1/6th and 1/12th share in suit lands block No.799 to the extent of 4 H. 17 R, Block No. 797 admeasures 4 H. 69 R, Block No. 795 admeasures 3 H. 36 R., Block No. 5 admeasures 3 4 H 67 R to the extent of 1/5th share, Block No.806 admeasures 3 H 86 R and Block No.415 admeasures 1 H 17 R, all lands situated at village Massa (Khandeshwari) Tq. Kallam, District Osmanabad. (3) Decree be drawn accordingly and it be sent to the Collector for separate possession of lands.” 4) Mr.Kulkarni also points, the decree holder/plaintiff was conscious of the orders in their favour and resultantly while moving execution application (page 54 of the petition) also the decree holders have confined their contentions seeking costs and no claim for mesne profit was agitated or sought from the executing court. This is the record, the decree holder cannot and need not controvert the same. 5) It was canvassed by learned Counsel for the decree holders that in spite of this arrangement, the judgment debtor has from time to time paid share of their use/earning to the decree holder and, therefore, the decree holder was justified in seeking the claim, as is referred herein before. This may be correct, however, since there was already an inbuilt inhibition for the decree holder, the decree could not be permitted to address beyond its scope, confirmed up to this Court. The order under challenge necessarily calls for 4 interference, it is accordingly set aside. 6) Any other remedy available to the decree holder in respect of mesne profits is kept open. The decree can proceed for other benefits against the judgment debtors. 7) Writ Petition is disposed of to the extent as indicated above. No costs. (K.U.CHANDIWAL) JUDGE bdv/