1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.7198 OF 2009 1] Maltibai Sukhdeo Patil Age 48 yers, Occ-Household R/o Neri, Tq. Pachora Dist.Jalgaon. 2] Anandkumar Sukhdeo Patil Age 32 years, Occ-Agril R/o Neri, Tq. Pachora District Jalgaon. .. PETITIONERS [ORIG.PLAINTIFF NO.1/ APPLICANTS IN REVIEW APPLICATION.] VERSUS Ramabai Shankar Patil Age 76 years, Occ-Nil R/o Dehegaon, Tq. Chalisgaon District Jalgaon Now R/o Neri, Tq. Pachora District Jalgaon. .. RESPONDENT [ORIG.PLFF.NO.2/ OPPONENT IN REVIEW APPLICATION] .... Shri Girish Rane, Advocate for the petitioners. 2 Shri Amol Sawant, Advocate for the respondent. ... WRIT PETITION NO.2389/2010 1] Rambai Shankar Patil Age 76 years, Occ-Nil 2] Indubai @ Chitrabai Shankar Patil Age 50 years, Occ-Household Both R/o Village Nehri, Tq.Pachora District Jalgaon. .. PETITIONERS [DECREE HOLDERS] VERSUS 1] Sukhdeo Shankar Patil (deceased) Through L.Rs. 1A] Maltibai Sukhdeo Patil’ Age 48 years, Occ-Household 1B] Anandkumar Sukhdeo Patil Age 30 years, Occ-Agril Both R/o Village Nehri, Tq. Pachora, Dist.Jalgaon. 2] Piran Shankar Patil (Deceased) Through L.Rs 2A] Smt.Vimalbai Piran Patil Deceased L.Rs. are already on record 3 2B] Ashok Piran Patil Age 33 years, Occ-Agril 2C] Deepak Piran Patil Age 27 years, Occ-Agril All R/o Village Nehri, Tq.Pachora District Jalgaon. 3] Shantabai Baliram Patil Deceased Through L.Rs. 3A] Chindabai D/o Baliram W/o Jugraj Patil R/o Village Nehri, Tq. Pachora, Dist.Jalgaon. .. RESPONDENTS .... Shri Amol S.Sawant,Advocate for petitioners Shri Girish Rane,Adv.for R.1-B Shri V.S.Janephalkar,Adv.for R.2-B & 2-C. .... CORAM : R.M.BORDE, J. DATE : 9 th SEPTEMBER, 2010. ORAL JUDGMENT : 1] Heard learned counsel for respective parties. Rule. Rule 4 made returnable forthwith and by consent of parties, petitions are heard finally at admission stage. 2] The applications tendered below Exhs.102 to 106 and Exh.107 by the parties to the proceedings came to be allowed by executing Court in view of order passed on 14/8/08 and the said order is subjected to challenge in this petition. 3] It was pointed out to the executing Court by the applicants that during continuance of the execution proceedings, one Surmabai who was the grand mother of the applicants died and as such they became entitled to get portion of share allotable to deceased Surmabai. It is also brought to the notice that some of the legal heirs viz.Baliram and Sukhdeo were alive during life time of Surmabai, but subsequently they also died in the years 1981 and 1988 respectively. Other 2 sons of Gobaji viz. Shankar and Baliram are also dead. In this view of the matter, legal heirs of 5 the deceased Baliram and Sukhdeo are entitled to get additional shares. It was therefore, prayed to direct necessary amendments in the decree so as to hold the legal heirs entitled to have larger share on account of death of the parties to the suit. The executing Court after considering the rival contentions allowed application and issued certain directions in respect of apportionment of shares. Direction no.6 contained in the order is in respect of allotment of shares to legal heirs of deceased Baliram and Shantabai and her children to the extent of ½ share collectively in the agricultural land allotted to share of deceased Gobaji Patil. The counsel appearing for the petitioners herein have invited my attention to the decree passed by the trial Court. The legal heirs of deceased Baliram were in fact not held entitled to any share out of share allottable to deceased Gobaji. In this view of the matter, direction contained in para 6 of the order is totally uncalled for. 6 4] Apart from this aspect, it was pointed out that similar applications were made on 2 occasions earlier. One such application made at Exh.72 was considered by the Executing Court and the same was rejected in view of order passed on 12/12/1996. An exception raised to this order vide Writ Petition No.4044/03 also came to be dismissed in view of order passed on 21/11/2003. On second occasion, application at Exh.83 was tendered claiming such relief. The said application also came to be rejected in view of order of executing Court dated 23/11/2006, The order passed in the said application was subjected to challenge in Writ Peititon No.208/2007. This Court after considering contentions raised by the parties, was pleased to reject application on 24/1/2007. In para no.2 of the order, this Court has observed thus : “2] Contention of the petitioner that unless the shares are carved out, it will be 7 difficult to execute the decree, in my view, is not open atleast to the present petitioner. Similar application filed in the year 1996 has been rejected. Proceeding arising therefrom are rejected by this Court as well as the Apex Court. It is not pointed out that any of the co-sharer has expired since 1996, so as to entertain the present petition. No perversity could be found with the approach adopted by the executing Court. In the result, writ petition is summarily dismissed.” 5] In view of the order passed in the applications tendered by the parties on earlier occasions claiming similar relief and in view of finality attached to the issues raised in the applications in view of order passed by this Court in Writ Petition referred to above, it was not open for the executing Court to pass order on 14/8/08 and allow the application. The order passed by Executing Court is not in conformity with 8 the decision rendered by this Court on earlier occasion. The order therefore needs to be quashed and set aside. The same is therefore, quashed and set aside. 6] The executing Court shall proceed to decide the execution application as expeditiously as possible in accordance with law. Parties are entitled to make appropriate submissions in respect of shares allotable under decree, before the executing Court. It is expected that the executing Court would expeditiously deal with the matter and decide the same. Rule is made absolute accordingly. No costs. (R.M.BORDE) JUDGE ... umg/wp7198-09