:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO. 7340 OF 2008 PETITION NO. 7340 OF 2008 PETITION NO. 7340 OF 2008 Yamunabai Chatursingh Thoke. ... Petitioner. V/s. Sumanbai Chatursingh Thoke & Ors. ... Respondents. Mr. S.P. Kadam i/b. M.N. Sandhyanshiv for the Petitioner. Mr. Vivek Salunke i/b. P.B. Shah for Respondents 6 to 9. Mr. J.D. Khairnar for Respondents 10,11, to 15. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 21ST 21ST 21ST APRIL 2009. APRIL 2009. APRIL 2009. P.C. P.C. P.C. : : : . Heard Mr. Kadam, learned Counsel appearing for the Petitioner, who has apart from instituting her substantive Suit has filed an application in the Executing Court which was seized off the proceedings to execute a decree passed in the Suit instituted way back in the year 1988. In the Execution Proceedings, the Petitioner applied for relief on the basis that her share has not been disbursed by the other parties to the Suit filed in the year 1988. The decree is being executed by filing Regular Darkhast No.15 of 2000. She has herself invited the attention of the Court to Regular Civil Suit No.101 of 2004 filed by her for declaration/partition and injunction. In such circumstances, the learned Civil Judge, Junior Division could not have allowed the application (Exhibit 146) preferred by the Petitioner and appointed a Court :2: Receiver. However, the contention of Mr. Kadam, appearing for the Petitioner is that the order passed (below Exhibit 146) was challenged by filing an Appeal being Misc. Appeal bearing No.125 of 2007,invoking order 43 Rule 1 of C.P.C. His contention is that this Appeal is not maintainable and on such an Appeal, the learned Appellate Court has quashed and set aside the order passed by the Executing Court is the grievance. 2. Having perused the Petition with the assistance of Counsel appearing for the parties, I am of the opinion that the order passed appointing the Court Receiver was rather drastic. Assuming without admitting that the Appeal was not maintainable and incompetent and therefore, the order of the Appellate Court deserves to be set aside, yet, the net result of all, this would be Revival of an order of the Executing Court appointing the Court Receiver which to my mind was uncalled for. More so, when the Petitioner - Plaintiff had ample opportunity to claim appropriate relief in her own substantive Suit. Having not done so and applied to the Executing Court clearly means that the Petitioner has asked for a relief based upon same allegations as are set out by her in the plaint in her Suit. She must satisfy the Court with regard to the allegations set up in her own Suit, atleast prima-facie. That she must do independently and not relying merely upon some inaction or violation on the part of the Defendants. In addition to pointing out their :3: inaction and violation, she must also show that she is entitled to her share in the suit property. She can do so in her own proceedings. Merely, because I dismiss this Writ Petition does not mean that the Petitioner-Plaintiff is precluded from applying for appropriate interlocutory and final reliefs in her Suit. Such an application including seeking appointment of a Court Receiver in her Suit must be decided by the Trial Court on its own merits and in accordance with law without being influenced by the order of the Lower Appellate Court passed during the course of the Execution Proceedings and dismissal of this Writ Petition. All contentions are kept open. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)