1 WP 3961.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3961 OF 2011 Govind S/o Sopanrao Bansode .... PETITIONER V E R S U S Vishnudas S/o Laxminarayan Mantri .... RESPONDENT Mr. N.D.Kendre, Advocate for the Petitioner. Mr. A.S.Deshpande, Advocate for Respondent. CORAM : S.V. GANGAPURWALA, J. DATE : 20/07/2011 ORAL ORDER : 1. The petitioner is the decree holder. The Suit for perpetual injunction came to be decreed, whereby the defendant was restrained to cause obstruction to the plaintiff’s possession over suit property. The petitioner filed execution proceedings on the ground that the defendant has caused obstruction. The evidence was led by the decree holder and the Judgment debtor. The execution proceedings were eventually dismissed by the executing court. Aggrieved thereby, the present Writ Petition is filed. 2 WP 3961.2011 2. Mr. Kendre, the learned counsel for the petitioner vehemently contends that the competent Court has passed a decree against the present respondent thereby restraining him from obstructing the possession of the petitioner over the suit property i.e. Block No. 32/A/1 admeasuring 3 Acres 10 gunthas situated at village Kanheri. The obstruction is proved by the petitioner by adducing evidence. Specific instances have been quoted by the petitioner, but the same has not been considered on mere variance on the part of the petitioner’s witness. The totality of the evidence should have been taken into consideration. After the totality of the evidence is considered, then it would be clear that the present respondent/judgment debtor has breached the decree passed against him by making construction over the said property. The Court below has failed to exercise its jurisdiction vested in it under Order XXI Rule 32 of the Code of Civil Procedure [ For short, ‘ the Code ’ ]. 3. Per contra, Mr. Amit S.Deshpande, the learned counsel for the respondent supports the order and states that the petitioner could not prove the alleged obstruction. When the execution was sought under Order XXI Rule 32 of the Code, the strict proof of the acts alleged was required. The witness of the petitioner has given a contrary evidence to that of the petitioner, which itself disproves the case of the petitioner. Even the 3 WP 3961.2011 petitioner could not withstand the cross examination. 4. With the assistance of the learned counsel for the respective parties, I have gone through the Judgment. 5. When the proceedings for execution of decree of injunction are initiated and the provisions of Order XXI Rule 32 of the Code are resorted, then in such circumstances, the strict proof of the obstruction is necessary. The perusal of the Judgment shows that in the cross examination the petitioner has admitted that the construction is made by the brother of the judgment debtor and it is the brother of the judgment debtor, who is receiving the proceeds of the rent in respect of the construction made. It is also not clear as to whether the houses which are in existence, are constructed by the respondent or some other persons. Even the witness examined by the petitioner states that the construction was started in 2008 and in 2009 the trees were cut, whereas the petitioner’s case was that in December 2003 the construction was made and in 2004 the trees were cut. The evidence led by the petitioner does not prove his case. 6. In light of the above, no case for interference is made out in the supervisory jurisdiction. The view taken by the court below is a plausible 4 WP 3961.2011 view. As such, the Writ Petition is dismissed. No costs. [ S.V. GANGAPURWALA,J. ] KNP/WP 3961.2011