1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.4347 OF 2010 (Abdul J. Gaffarkhan and another vs. Akramkhan Gulam Mustafa and others) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri R.M. Pande, Advocate for the petitioners. Shri M.A. Vaishnav, Advocate for the respondent nos. 6 and 8. --------- CORAM : R.M. SAVANT, J. DATED : AUGUST 8 , 2011 The above petition takes exception to the order 17/6/2010 passed by the 2 nd Joint Civil Judge, Junior Division, Amravati whereby the Application filed by the respondent no.6 herein came to be partly allowed and resultantly, she was permitted to lead evidence in the execution proceedings filed by the petitioners herein for execution of the decree dated 2/5/1992 passed in Regular Civil Suit No. 948/1987. No doubt, the decree is one for possession passed in favour of the petitioners herein in a suit 2 wherein respondent no.6 herein was a defendant. It is an undisputed position that the petitioners and the said respondent are claiming on the basis that they are the heirs of one Abdul Rahuf. The respondent no.6 is the sister of the petitioners. Though the suit is not one for partition, the Executing Court on the ground that all the questions relating to right, title or interest in the property arising between the parties to a proceeding shall be determined by the Court dealing with the Application and not by a separate suit, has allowed the respondent no.6 to lead evidence in support of her case. Though there is a substance in the contention of the learned Counsel for the petitioners that since the suit is not one for partition, the respondent no.6 could not in the execution proceedings claim partition of the property, in my view, no interdiction is called for with the impugned order on the said ground. However, it would be open for the petitioners to urge the said contentions before the Executing Court when the said Regular Darkhast No. 4/2009 and the Application filed by the respondent no.6 objecting to the execution of the 3 decree are considered and if such contentions are raised by the petitioners, the Executing Court would deal with them and dispose of the same in accordance with law. With the aforesaid observations, the petition is disposed of. JUDGE khj