1 WP 6903.2011 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6903 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. Sachin S. Deshmukh, Advocate for the petitioners. Mr. A.D.Kasliwal,Advocate holding for Mr. A.S.Bajaj, Advocate for the respondent. ................................ CORAM : S.V. GANGAPURWALA, J. DATE :19/09/2011 PER COURT : 1. The petitioners are the original Judgment debtors. The respondent – decree holder had filed Suit for specific performance of contract, which initially was dismissed by the trial Court. The District Court allowed the Appeal and decreed the Suit of the respondent for specific performance of contract and delivery of possession. The said Judgment was assailed in the Second Appeal. The High Court dismissed the said Second Appeal and confirmed the Judgment of the appellate court. The Apex Court also confirmed the Judgment passed by this Court in Second Appeal and the District Court in First Appeal. Thereafter, the present respondent filed execution proceedings for specific performance of contract and delivery of possession. 2 WP 6903.2011 The present petitioner filed an objection U/s 47 of the Code of Civil Procedure [ For short, ‘ the Code ’ ] on the ground that the defendant has 1/4th share and unless the shares are segregated, no further order can be passed, so also raised objection that the petitioner has not given specific boundaries for execution of the sale deed and delivery of possession. The executing court rejected the said objection. Aggrieved thereby, the present Writ Petition is filed. 2. Mr. Sachin S.Deshmukh, the learned counsel for the petitioner strenuously contends that the petitioner has failed to comply the mandate laid down under Order VII Rule 3 of the Code and as such the decree can not be executed. For the said purpose, the learned counsel relies on the Judgment of the learned Single Judge of Allahabad High Court in the case of Abrul Majid and others V/s Abdul Ghaffar and others reported in 1997 AIHC – 2933. 3. The learned counsel further contends that the plaintiff had initially given the boundaries in the Suit, which he again changed by amendment. The plaintiff himself is not certain about the boundaires. In such circumstances, the decree is not executable in view of the vague boundaries. 4. The plaintiff had filed Suit claiming specific performance of contract on the basis of an agreement of sale. The Courts have adjudicated the said issue while trying the Suit. The decree is confirmed up to the Apex 3 WP 6903.2011 Court. Even the Apex Court had deliberated upon the evidence led and confirmed the decree. The executing Court can not go behind the decree. It has been observed by the executing court in the impugned order that it was agreed between the parties that the western part of the suit land is to be purchased by the decree holder and the said fact is not disputed by the present petitioner/judgment debtor and the petitioner is entitled for execution of the sale deed and possession of 1 H. 60 R. land from the western part of the whole land. In view of the finding given by the Court while trying the Suit, which is confirmed up to the Apex Court, the executing Court does not have jurisdiction to dilate upon the said issue. The judgment in the case of Abdul Majid and others referred supra is in respect of an objection regarding identity and the extent of the suit property when the Suit was being tried. The said stage is already over. The petitioner did not dispute the said factum at the time of the trial of the Suit and in the Appeal. In view of that, the said objection can not be gone into. 5. However, the whole G.No. 220 is admeasuring 7 H. 14 R. Out of the said land, 1 H. 60 R. is the subject matter of the Suit/decree. The respondent – decree holder is entitled for the sale deed and the possession of 1 H. 60 R. land only. As such, the T.I.L.R. will be required to measure the land admeasuring 1 H. 60 R. out of G.No. 220 from western side before delivering possession to the decree 4 WP 6903.2011 holder. 6. In light of the above, the Writ Petition is dismissed. No costs. [ S.V. GANGAPURWALA, J.] KNP/WP 6903.2011 5 WP 6903.2011