1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.965 OF 2007 Shri Pramod Ramvilas Malpani ..Petitioner. V/s. Shri Sham Tuljaram Pardeshi & Anr. ..Respondents. Mr.P.S.Dani for petitioner. Mr.S.M.Gorwadkar for Respondent No.1. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 2, 2009. DATE : FEBRUARY 2, 2009. DATE : FEBRUARY 2, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. The order which is impugned in this Petition is a benign order calling upon the executing Court to decide the Application preferred by the Respondent Sham Tuljaram Pardeshi in accordance with the law. Obviously the order will have to be understood to mean that Sham Tuljaram Pardeshi, if was claiming through the Judgment Debtor, the question of examining his application or following procedure for removal of obstruction will not arise. However, the question of following procedure of removing obstruction would be necessitated only if the Respondent Sham Pardeshi was to assert that he is in 2 occupation of the suit premises in his own right. The order passed by the Appellate Court will have to be construed in this manner so that there is no confusion in the mind of the executing Court. This arrangement would be necessary, as the order which was earlier passed by the executing Court dated 15th June, 2006 has not considered this aspect of the matter. If the executing Court were to find that the Respondent Sham Tuljaram Pardeshi was claiming to be in possession of the suit premises in his own rights, formality of removal of obstruction will have to be proceeded with and not otherwise. Reliance placed by the Counsel for the Petitioner in the case of Ashok Ashok Ashok Chintaman Juker & ors. V.s. Kishore Pandurang Chintaman Juker & ors. V.s. Kishore Pandurang Chintaman Juker & ors. V.s. Kishore Pandurang Mantri & Anr. reported in (2001) 5 SCC page 1 Mantri & Anr. reported in (2001) 5 SCC page 1 Mantri & Anr. reported in (2001) 5 SCC page 1 has no application to the problem on hand, which is posed before this Court in the context of the observations of the executing Court dated 15th June, 2006. It would have been a different matter if the subject application preferred by the Respondent Sham Pardeshi was to be rejected on the finding that he was claiming to be joint tenant alongwith the Judgment Debtor. No such finding has been recorded nor the Court has clearly observed as to in what capacity Sham Pardeshi was obstructing execution of the decree. 3 3. As aforesaid all these aspects will have to be considered by the executing Court in the first instance. No other issue arises for consideration in the present Writ Petition. All questions to be considered by the executing Court are left open. 4. As the execution proceedings are pending for quite some time and pertains to decree of eviction passed on 20th December, 2000, the lower Court is expected to proceed with the matter expeditiously to dispose of the subject application and/or removal of obstruction proceeding on or before 30th June, 2009. The parties shall appear before the lower Court on 24th February, 2009. 5. Petition disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)