1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.6581 OF 2009 1 Panchayat Samiti Sudhagad-Pali Through Block Development Officer 2 Raigad Zilla Parishad ...Petitioners vs. 1 Ganesh Raghunath Nazirkar 2 District Collector, Raigad 3 State of Maharashtra ...Respondents Mr.C.G.Gavnekar for the petitioners Mr.G.R.Nazirkar respondent no.1 in person Mr.S.D.Rayrikar, A.G.P for respondent nos.2 and 3 CORAM :A.S.OKA,J. DATE : MARCH 8, 2010 JUDGMENT: 1 Heard the learned counsel for the petitioners and the first respondent appearing in person. I have herd the learned A.G.P for the respondent nos.2 and 3. 2 The petitioners Panchayat Samiti, Sudhagad Pali and Raigad Zilla Parishad have invoked writ jurisdiction under Article 227 of the Constitution of India. The challenge in this petition is to the order dated 2 nd May 2009 passed by the learned Civil Judge (Senior Division) at Alibag, District Raigad. The said order has been passed on an application for execution of the decree passed in Regular Civil Suit no.93 of 1991. The first respondent who is claiming to be a Vahivatdar of Sriram Devasthan Trust, Sudhagad-Pali, District Raigad filed a civil suit for possession of a land. The suit was decreed and a decree for possession was passed against the petitioners. An appeal preferred by the petitioners 2 against the said decree was dismissed. In execution of the said decree, a possession warrant was issued. In the meanwhile, Second Appeal was preferred by the petitioners against the decree for possession. In the Second Appeal, a statement was made by the petitioners that acquisition proceedings will be initiated in respect of the suit land. In view of this statement, though the Second Appeal was dismissed, stay was granted for a limited period to the execution of the decree. On 18 th February 1994, this Court extended the stay till 30th April 1994 and directed the petitioners to deposit a sum of Rs. 4,00,000/- and the first respondent was permitted to withdraw the said amount. In the pending execution application being Darkhast No.17 of 1992, the District Government Pleader representing the State Government pointed out that as per the order of this Court, a sum of Rs.4,00,000/- has been deposited and the first respondent has withdrawn the said amount. By order dated 2 nd February 1996, the execution application was disposed of by the trial Court by observing that a sum of Rs. 4,00,000/- received by the first respondent shall be adjusted in the amount of compensation which may be awarded in the acquisition proceedings. 3 An award dated 15 th May 1996 was made under section 11 of the Land Acquisition Act,1894 in respect of the area admeasuring 2167.08 sq. meters and the compensation of Rs.3,36,104/- was awarded. A reference was made under section 18 of the Land Acquisition Act,1894 at the instance of the first respondent. In the meanwhile, the first respondent attempted to claim compensation by filing a civil suit which was dismissed on technical grounds. A reference under section 18 of the said Act of 1894 made at the instance of the 1 st respondent was decided on 9 th July 2001. The reference Court directed 3 the petitioners to pay compensation of Rs.4,00,000/- for an area of 2165 sq. meter and directed the 2 nd petitioner and the State Government to pay compensation at the same rate for the remaining area admeasuring 835 sq. meters referred to in the suit for possession filed by the 1 st respondent. The Reference Court directed that if the State Government was not interested in acquiring the remaining area of 835 sq. meters, possession thereof shall be handed over to the first respondent. An appeal was preferred by the petitioners against the Award made under section 18 of the said Act of 1894. On 22 nd August 2003, a Division Bench of this Court allowed the appeal by setting aside the Award of the reference Court and directed the first respondent to deposit the excess amount. The said Judgment and Order of this Court has become final. Thereafter, in the year 2006 the second execution application was filed by the first respondent for executing the decree passed in Regular Civil Suit no. 93 of 1991. The said execution application was dismissed by the trial Court on the ground that the same not maintainable. Thereafter, an attempt was made by the first respondent to seek possession by filing a Civil Application in the disposed of Second Appeal preferred by the petitioners for challenging the decree for possession. The said Civil Application was dismissed as not maintainable. Thereafter, the first respondent preferred an appeal before the District Court for challenging the order of the trial Court by which the second execution application filed by him was rejected. On 23 rd March 2007 Appeal was dismissed and the application for review of the said order filed by the first respondent which was again dismissed by the learned Principal District Judge. On 4 th July 2008, another civil application was filed by the first respondent in the disposed of Second Appeal. The prayer in the said 4 application was that the petitioners be directed to hand over possession of the rest of the suit property save and except the property which was acquired. The said application was rejected by this Court by keeping the remedy of the first respondent open. Thereafter, third execution application being Special Darkhast no.85 of 2008 was filed by the first respondent for executing the decree passed in Regular Civil Suit no.93 of 1991. It appears that an objection was raised in writing by the petitioners by contending that two earlier execution applications for executing the same decree filed by the first respondent have been dismissed and therefore, the third application was not maintainable. The contention raised by the first respondent is that even after the acquisition of a part of the suit property subject matter of the decree in Regular Civil Suit no.93 of 1991, certain part of the suit property still remains unacquired and therefore, possession to that extent will have to be given to the first respondent. After noting the objection, by the impugned order, the learned Executing Court directed the first respondent to give particulars of the area in respect of which he was seeking possession and to file evidence in support of the said contention. 4 The learned counsel for the petitioners submitted that earlier two applications for execution have been dismissed by the trial Court. He pointed out that in the meanwhile, the first respondent has received the entire compensation. He submitted that an objection was raised to the maintainability of the third execution application by pointing out that the earlier two applications have been dismissed. He submitted that even after referring to the said contention the learned trial Judge has not considered the same and directed the first respondent to 5 give details of the area in respect of which he is seeking possession and to produce evidence. He submitted that without going into the maintainability of the said application, impugned order could not have been passed. 5 The first respondent appearing in person submitted that the entire property which is subject matter of the decree for possession has not been acquired. He placed reliance on the decision of this Court dated 4 th July 2008 in Civil Application no.898 of 2008 in the disposed of Second Appeal. He submitted that as the decree for possession has attained finality, he is entitled to secure possession of that part of the property which has not been acquired. He submitted that the execution application was maintainable as the entire property has not been acquired by the petitioners. 6 I have given careful consideration to the submissions. Earlier two execution applications were disposed and/or dismissed by the Executing Court. The first execution application being Darkhast No.17 of 1992 was disposed of by order dated 2 nd February 1990 after noting that the first respondent has received a sum of Rs.4,00,000/- on account of acquisition. While passing the said order, the Executing Court also noted the contention of the first respondent appearing in person that the entire suit property subject matter of the decree has not been acquired. The said contention was not accepted and the execution application was disposed of by noting that a sum of Rs.4,00,000/- received by the first respondent will be adjusted against the amount payable under the award in the acquisition proceedings. 7 Another application for execution being Darkhast No. 28 of 2006 was filed by the first respondent in the year 6 2006. The said application was dismissed by the trial Court by order dated 9 th November 2006. An appeal was preferred by the first respondent against the said order. The said Appeal was dismissed and the application for review of the said order was also dismissed. Thereafter, the present execution application being Special Darkhast No.85 of 2008 has been filed by the first respondent on which the impugned order has been passed. The specific objection was raised by the petitioners that earlier two execution applications have been dismissed and therefore, third application was not maintainable. I find that without considering the said objection, execution application was entertained by directing the first respondent to submit particulars of the area in respect of which the possession was sought. He was directed to adduce evidence in support. As earlier two execution applications were dismissed, before passing any further order on the new execution application, the executing Court will have to consider the question whether the execution application is maintainable and whether the decree for possession is executable in view of subsequent developments which are referred to above. Without dealing with the preliminary objection raised by the petitioners, the impugned order could not have been passed. In the circumstances, impugned order will have to be quashed and set aside with a direction to the Executing Court to consider the objections raised by the petitioners as regards the maintainability of the execution application and executability of the decree. 8 Hence, I pass the following order : i) Impugned order dated 2 nd May 2009 is quashed and set aside. ii)The learned trial Judge is directed to consider and 7 decide the objection raised by the petitioners as regards maintainability of the third execution application as well as the objection regarding executability of the decree passed in Regular Civil Suit no.93 of 1991. iii)The objections shall be dealt with by the trial Court in accordance with section 47 of the Code of Civil Procedure,1908. Only after dealing with the the objections, depending upon the outcome of the adjudication, the trial Court will pass further order on execution application. The trial Court is directed to decide the objections raised by the petitioners as expeditiously as possible and preferably within a period of two months from the date on which writ of this order is received by the said Court. iv)All contentions of the parties on merits of the execution application are kept open. v) Rule is partly made absolute on above terms with no order as to costs. JUDGE