IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10129 OF 2009 Veera Mundroina ..... ..... ...Petitioner V/s F.K.Shirwalla & Ors. ..... ..... .Respondents. Ms. S.V.Bharucha, Adv. for the petitioner. Mr.A.V.Anturkar i/by Mr.C.N.Chavan, for the Respondent No.1. CORAM: A.P.DESHPANDE, J. 8th December, 2009. PC: The present petitioner is an obstructionist who has obstructed the execution of decree for possession passed in favour of respondent No.1- decree holder. Respondent No.1 filed a suit against one Ms.Dhun Doctor and her brother Manek R. Doctor for ejectment and possession on the ground of bonafide and reasonable need for personal occupation. The suit came to be decreed. Aggrieved by the decree Ms.Dhun Doctor who is the tenant alone preferred an appeal whereas Mr.Manek R. Doctor father of the present petitioner chose not to file any appeal. The appeal came to be dismissed as the appellate court concurred with the view taken by the trial court. Aggrieved thereby Dhun Doctor preferred writ petition in this Court. This court being of the view that the orders under challenge do not suffer from any illegality rejected the petition. On the date on which the writ petition was dismissed Dhun Doctor-judgment debtor No.1 was alive. However thereafter she expired on 23.12.07. The matter was not carried any further after decision of the High Court and thus decree for ejectment and possession attained finality. 1 2. The present petitioner is the daughter of the judgment-debtor No. 2 whereas judgment-debtor No.1 Dhun Doctor since deceased is the paternal aunt of the petitioner. After dismissal of the petition by the High Court the present petitioner instituted a suit for declaration that she is a tenant within the meaning of section 5(11) (C) of the Bombay Rent Act. The said suit is pending wherein the petitioner has filed an application for injunction. However I am informed at the Bar that no injunction has been granted. In the above set of facts apprehending dispossession by moving an applicat9ion the petitioner moved the executing court with a view to have her rights determined under Order 21 rule 97. Respondent No.1 in view of the said objection sought obstruction to be removed. Orders passed on the said application by the trial court and the first appellate court is the subject matter of the present writ petition. The present petitioner has led evidence before the trial court with a view to substantiate her plea of tenancy under section 5(11)(C) of Bombay Rent Act. According to the learned counsel the petitioner claims tenancy rights through her grant parents and not through her father or the paternal aunt who are judgment-debtors. On appreciation of the evidence the trial court found that the petitioner was not residing at the suit premises on the date on which the grand father expired so also on the date on which the grand mother expired. These are concurrent finding of fact recorded by both the courts below. The courts below have concluded the question by observing that the petitioner has failed to make out case that she is a tenant of the suit premises and thus rejecting her application has issued warrant of possession. 3. According to the learned counsel for the petitioner her rights in regard to tenancy need to be adjudicated in pending suit wherein the 2 petitioner is claiming declaration that she is a tenant in respect of suit premises. However according to the learned counsel for the respondent No.1 all the questions arising out of execution of decree need to be decided in the execution proceedings having regard to the mandate of order 21 rule 101 of Code of Civil Procedure. At this juncture it will be relevant to note that in the year 1985 the paternal aunt of the petitioner late Dhun Doctor-Judgment debtor No.1 filed an application claiming herself to be tenant before the appropriate Court. The present petitioner was aware of the said proceedings wherein late Dhun Doctor claimed herself to be the tenant. However the petitioner did not take any steps with a view to assert tenancy rights in herself and denying the same in favour of late Dhun Doctor-paternal aunt. Trial court passed appropriate order and directed that the rent receipts be transferred in the name of Dhun Doctor. Having regard to evidence on record coupled with the proceedings taken out by Dhun Doctor seeking tenancy rights the courts below have concluded that there is no legal right in the present petitioner to obstruct the execution of the decree. I do not see any infirmity in the said finding recorded by courts below. It is then submitted that decree for possession passed in favour of respondent No.1 is not just and fair in as much as the petitioner is left in possession of only kitchen, bathroom and a W.C. This court cannot go behind the decree to find out as to whether decree passed is proper or otherwise. There being no merit in the writ petition same deserves to be dismissed and I proceed to dismiss the same. At this stage learned counsel for the petitioner submits that the petitioner be grant5ed some breathing time to vacate the premises. In the submission of learned counsel three months time be granted. Learned counsel for respondent No.1 opposes the said prayer pointing out that 3 the same exercise was carried when the earlier writ petition was dismissed. Though the time was granted the present petitioner did not vacate the premises and on the contrary instituted a suit and raised obstruction in the execution. Having regard to the rival submission I deem it appropriate to grant two months time to the present petitioner to vacate the premises covered by the decree subject to condition that the petitioner files an undertaking in this court within a period of one week from today that the petitioner shall not part with possession and shall not induct any one else in the premises. The petitioner’s undertaking shall also state that the petitioner will not create any third party interest or part with possession and/or alienate the premises in any manner. In the event if the petitioner fails to file the aforesaid undertaking within stipulated period it shall be open for the respondent No.1 to execute the decree. 08.12.2009. 4