1 6371.11-wp IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. WRIT PETITION NO. 6371 OF 2011 The Chairman, Korvi Sahakari Bamboo Vetkam Society Limited. ... Petitioner. V/s. Appasaheb Pirappa Kumbhar. ... Respondent. S.S.Shah for the petitioner. S.S.Patwardhan for the respondent. CORAM: R.M.BORDE, J. DATED : 23rd August 2011. P.C. : By this petition, the petitioner/ original judgment debtor is taking exception to the order dated 27th June 2011 passed by the Joint Civil Judge, Junior Division, Ichalkaranji below Exh.22 in Regular Darkhast No.58/2010. It is not disputed that the suit presented against the judgment debtor for removal of encroachment and for handing over vacant possession of the encroached area was dismissed by the trial Court. The judgment and decree passed by the trial Court was reversed by the first appellate Court and while allowing Regular Civil Appeal No.301/2005, the suit presented by the plaintiff was decreed. The judgment and decree passed in appeal was maintained in Second Appeal No.3/2009 which was dismissed in the year 2009. Thus, there 2 6371.11-wp is finality attached to the judgment and decree passed by the first appellate Court directing removal of encroachment allegedly committed by the judgment debtor. In the execution proceeding presented by the decree holder/ original plaintiff, an application was made by the judgment debtor/ original defendant objecting to the execution of the decree on the ground that the property in dispute is not in existence. The judgment debtor takes recourse to the communication issued by the Superintendent of Land Records, Kolhapur to contend that the properties bearing City Survey No.6165 and 6967 are not in existence as those entries have been cancelled by the City Survey Officer. The executing court, taking into consideration the objection raised by the judgment debtor, arrived at the conclusion that the objection is frivolous and is raised with a view to create obstacle in the execution of the decree. During the continuance of suit, the judgment debtor/ original defendant had undertaken to remove encroachment, if any. The certified copy placed on record (Ex.21) contain an undertaking of the original defendant that he would remove encroachment on his own. Considering the fact that the dispute relates to recovery of possession of immovable property and that the original defendant during the continuance of the litigation had given an undertaking in writing that he would remove encroachment, if the same is disclosed during the enquiry in the suit, itself makes it abundant clear that the immovable property does exist and the objection is raised by the judgment debtor in order to protract the execution proceeding. The executing Court was, therefore, justified in turning down the application of the original defendant and directing Assistant Superintendent to appoint bailiff to remove the encroachment in accordance with the original map presented on record at Exh.201. 3 6371.11-wp The executing Court has not committed any illegality in issuing such direction while considering the application tendered by the judgment debtor under section 47 of C.P.C. objecting entertainability of the execution proceeding. In exercise of the extra ordinary jurisdiction under Article 227 of the Constitution of India, no interference with the impugned order is called for. Writ petition is devoid of any substance. 2. At this stage, learned counsel for the petitioner requests for continuation of interim relief. Considering the fact that the objection raised by the judgment debtor is with a view to protract the execution proceeding, I am not inclined to continue the interim relief as requested by the learned counsel for the petitioner. Prayer made is, thus, rejected. (R.M.BORDE, J.)