1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 1353/2011 (Dashrath Hiralal Birkhede VERSUS Damodhar Hiralal Birkhede & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.D. Khati counsel for the petitioner. Shri M.B. Naidu, counsel for the R-1 to 3. CORAM : SMT. VASANTI A. NAIK, J. DATE : APRIL 26 , 2011 . Heard. The Executing Court did not commit any error in rejecting an application/objection filed by the petitioner praying therein that the share allotted to Bhuliyabai be cancelled and the execution petition be dismissed. It is necessary to note that Bhuliyabai and Damodhar had filed a suit for partition and separate possession against the petitioner. The suit was decreed and the judgment and decree passed by the trial Court attained finality on the dismissal of the appeal filed by the petitioner. After the first appeal was dismissed, Bhuliyabai expired and in the execution proceedings filed by Damodhar, the petitioner raised the objection that Bhuliyabai was not entitled to claim partition of the suit property as per Hindu Law and the decree passed by the trial Court was a nullity. The petitioner, therefore, sought the cancellation of the share allotted to Bhuliyabai and also the dismissal of the execution proceedings. 2 The Executing Court rightly dismissed the application filed by the petitioner as not only Bhuliyabai but, Bhuliyabai and one of the sons by name Damodhar, had filed the suit for partition and separate possession. In the suit filed by Damodhar and Bhuliyabai, the trial Court could have granted the allotment of 1/3rd share in favour of Bhuliyabai. The petitioner had not raised the aforesaid objection in the written statement filed by him in the civil suit filed by Bhuliyabai and Damodhar. The ground about the tenability of the suit could have been raised by the petitioner in the proceedings filed by Bhuliyabai and Damodhar. In any case, as already observed hereinabove, the suit was not filed by Bhuliyabai alone and was filed by Bhuliyabai and Damodhar and, hence, the judgment reported in 2010 (3) Mh.L.J. 631 (Ananda Krishna Tate since deceased by legal heirs Sanjay Anand Tate & others Versus Draupadibai Krishna Tate & others) and relied on by the counsel for the petitioner cannot be made applicable to the facts of this case. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE APTE