1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1736 OF 2009 Sau. Ushabai s/o. Sudhakar Patil .. petitioners Versus Sitaram Bhila Badgujar (deceased) through his LRs and others. .. Respondents. --- Mr. Amol Sawant, Advocate for the petitioner Mr. Girish Rane, Advocate for the respondents Nos. 1A and 1B. CORAM : B.R. GAVAI, J. DATE : 17th July, 2009. ORAL ORDER :- 1] By way of present petition, the petitioner challenges the order dated 18th December, 2008, vide which the learned trial court has allowed the application filed by the present respondents for issuance of possession warrant. 2 2] The petitioner is the original plaintiff, who had filed the suit against the respondent NO.1 alongwith respondent No.2 - original plaintiff. It appears that during the pendency of the civil suit and the Misc. Civil Appeal, which arose out of the proceeding for grant of interim injunction, a compromise was arrived at between the parties and accordingly, a compromise pursis was filed on 6th October, 1990 below Exhibit 68, wherein, it was agreed to get the land jointly measured from the Cadastral Surveyor and hand over the encroached land, if any, to the other side. It appears that thereafter, both, the respondent No.1 and 2 filed a proceeding for execution of the compromise decree. In the execution proceedings, filed by the present respondent NO.1 he also filed an application for injunction against the petitioner and the respondent NO.2 for restraining them from constructing a common wall running in North-South direction. Vide order dated 15/7/1991, an ex-parte ad-interim injunction was granted against the petitioner. However, subsequently, on 21st April, 1992, the application for temporary injunction filed by the respondent No.1 came to be rejected. In the meantime, the respondent No.1 also filed R.C.S. No. 127/1991 which came to be dismissed. The appeal filed there against also came to be withdrawn. 3] It appears that in the Execution Proceeding No. 14/1991 and 26/1991 filed by the respondent No.1 and 2, a Court Commissioner came to be appointed. The Court Commissioner, after measurement of the land, submitted his report. The same is exhibited at Exhibit 194. After receipt of the Commissioner's report, an application came t be filed by the respondent 3 No.1 for issuance of possession warrant submitting therein that the Commissioner had found that the land admeasuring 3.96 sq. Mtrs. owned by the respondent No.1, was illegally in possession of the plaintiffs and, therefore, the same should be demolished and possession warrant should be handed over to the respondent No.1. Being aggrieved by the same, the present petition. 4] Shri Sawant, learned counsel for the petitioner submits that the learned Executing Court has grossly erred in allowing the application filed by the respondent NO.1 for issuance of possession warrant. He submits that the petitioner has already raised objection to the report of the Commissioner on 5th March, 2009 and as such, till the decision of the said objection, possession warrant ought not to have been issued. 5] Shri Rane, learned counsel for the respondents supports the impugned order. 6] It can be seen that though the Commissioner has submitted his report on 21st April, 2008, the petitioner has not raised any objection till the order of issuance of possession warrant came to be passed by the trial court on 18th December, 2008. It could further be seen that the measurement is based on the compromise decree, which is modified on 19/6/1991, which order is also not challenged by the present petitioner. 7] In any case,it could be seen that the objection on which the present petitioner relies is filed on 6/3/2009 i.e. after the order of issuance of 4 possession warrant. As such, I do not find any infirmity in the order passed by the executing court, issuing possession warrant. The petition, which is without any substance, is summarily rejected. [B.R. GAVAI,J.] Grt/-