1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1021 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 1021 OF 2011 *** 1. Heard Advocate Shri Surve for the Petitioner, Advocate Shri P. S. Bhandari for Respondent No.1. Both counsel state that other respondents will not be affected by the orders which this Court proceeds to pass. Hence, service upon them is dispensed with. 2. Shri Surve contents that the Respondent No.1 has obtained a decree in a suit for specific performance which entitles him to 3/4th portion out of land Gat No.250, admeasuring 6 Hectares 70 Ares. According to him, the agreement on the basis of which that decree came to be granted, was signed by three out of four joint owners and 4th joint owner viz. Shaikh Ahmed Nawaz has executed the sale deed in favour of petitioner for remaining 1/4th portion. He contends that Petitioner is not concerned with 3/4th portion to which Respondent No.1 is entitled 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1021 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. and is interested only in his 1/4th portion i.e. 1 Hectare 67 Ares. In this situation, the order of attachment of entire land Gat No.250 passed by the executing Court on 18th January, 2011 is unsustainable. 3. Shri Bhandari has pointed out that agreement for sale in favour of Respondent No.1 was not signed by vendor of petitioner and, therefore, High Court decreed the suit holding him entitled to 3/4th portion. According to him, total area of Gat No.250 is 8 Hectare and 47 Ares and the four joint owners amongst themselves had ownership over 6 Hectare and 70 Ares only. He further contends that Petitioner claims to have purchased 1 Hectare 67 Ares initially from Shaikh Ahmed and again 86 Ares in 2010 from legal heirs of said Shaikh Ahmed. He, therefore, states that indirectly petitioner is claiming to be in possession of about half of the area of 6 Hectares 70 Ares. 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1021 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 4. He is also relying upon later part of the judgment of this Court to urge that 3/4th portion is to be worked out only after measurement. In this situation, according to him, attachment of entire 6 Hectares and 70 Ares was essential for safeguarding the property and for its proper measurement and then for execution of the decree in favour of Respondent No.1. 5. Shri Surve denies fact of obtaining any such sale deed from legal heirs of deceased Abdul Nawaz. He makes a statement that petitioner is interested in his 1/4th portion as purchased in 2004 from said Abdul Nawaz and he is not opposing execution of decree of petitioners in any way. 6. During hearing it has come on record that inspite of service of notice, as alleged, the petitioner could not appear before the executing Court and, therefore, could not assist that Court in the matter. 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1021 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 7. In view of the statement made before this Court that petitioner is not interested in the suit land beyond the portion of 1 Hectare 67 Ares, purchased by him from Abdul Nawaz, I find that there is no lis between the parties insofar as execution of decree in favour of Respondent No.1 is concerned. But, then, as trial Court has not heard the petitioner and has passed the impugned order, I am inclined to give petitioner opportunity to approach trial Court and to point out all these developments so that trial Court can then decide whether attachment of entire 6 Hectares 70 Ares of the land out of land Gat No.250 is warranted or not. 8. Only for that purpose, the impugned order dated 18th January, 2011 passed in Special Darkhast No.82 of 2010 is set aside. 9. Parties are directed to appear before the executing Court on 29th March, 2011 and the executing Court shall, after hearing 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 1021 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. parties, pass fresh orders in accordance with law as early as possible and in any case within further period of four weeks. Till the trial Court passes appropriate orders, in this respect, parties shall not create any third party interest and shall not create any encumbrances on the said land Gat No.250. 10. Petition is thus partly allowed. No costs. [B.P.DHARMADHIKARI, J.] Dated:16/03/2011. ans/1021