1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3743 OF 2006 Dr.Balkrishna Shamrao Mahapralkar .. Petitioner Versus Baburao G. Chavan (deceased) through heirs and Lrs. And Ors. .. Respondents Mr.G.N.Nagarsheth for petitioner Mr.S.R.Ganbawle for respondent Nos.3(b) to 3(d). CORAM : S.C.DHARMADHIKARI, J. DATE : 26th June 2009. P.C.: 1] This petition is by the aggrieved petitioner who is decree holder. He is aggrieved by the fact that the Executing Court disposed of his Execution Application/ petition itself on the ground that the decree in his favour has been modified by the Lower Appellate Court and, therefore, the Execution Application filed by him is not tenable. 2] Mr.Ganbawle with his usual vehemence has contended that the view taken does not require any interference in the discretionary and equitable jurisdiction of this Court because the Executing Court was right 1 in the conclusion reached by it. The decree holder – petitioner did not take any steps to either modify the Execution Application or bring to the notice of the Executing Court the events subsequent to the passing of decree. Therefore, in law, when it is a decree of higher court/ appellate court which is to be executed, then, the view taken requires no interference. 3] It is not necessary to refer to any precedents or statutory provisions as it is common ground that the decree passed by a Trial Court, if modified by the Higher Court must be executeds as modified. However, the duty to execute the decree even if it is modified continues and cannot be abdicated by the Executing Court. It is duty bound to execute the decree, enforcement and execution of which is otherwise permissible and cannot deny that relief to the decree holder, merely because of some omission on his part. Here, the execution petition as a whole has been thrown out by the Executing Court merely because the decree has been modified. The Executing Court does not say that the decree has been set aside nor is it the case of respondent – Judgement debtor before me. If it is modified by Higher Court/ forum, it will be executed and enforced as modified, i.e. in the modified form. However, the application itself could 1 not have been rejected and precisely that is done in this case. 4] The order under challenge, therefore, cannot be sustained as it is vitiated by an error apparent on the face of record. It is accordingly set aside. Once the order under challenge is set aside, then, execution petition filed by the petitioner decree holder is restored to the file of the executing court for being dealt with and disposed of in accordance with law. Since the matter is pending for long time, the Executing Court should endeavour and dispose of the same expeditiously. Petition allowed in the above terms. No costs. (S.C.DHARMADHIKARI, J)