1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.8036/2009 1] Tukaram Chima Rupwate Age 61 years, Occ-Agri. 2] Sakharam Chima Rupwate, Age 69 years, Occ-Agri. 3] Sushabai w/o Tukaram Rupwate Age 55 years, Occ-Agri. All R/o Mangalapur, Tq. Sangamner,Dist.Ahmednagar .. PETITIONERS [JUDGMENT DEBTORS] VERSUS Shrirang Tukaram Pawar Age 75 years, Occ-Agri R/o Mangalapur, Tq.Sangamner Dist.Ahmednagar. .. RESPONDENT [ORIG.DECREE HOLDER] .... Shri I.S.Thorat,Adv.for petitioners Shri A.N.Nagargoje,Adv.for Respondent. ... CORAM : R.K.DESHPANDE,J. DATE : 27/7/2010. 2 ORAL JUDGMENT: 1] This Petition challenges the order dated 6/4/1996 and 7/10/2009 passed by learned Joint Civil Judge, Junior Division, Sangamner in Regular Darkhst No.55/92. 2] Notice in this matter was issued on 2/12/2009 and interim relief was granted in terms of prayer clause “C” i.e. stay to the proceedings dated 6/4/1996 and 7/10/2009 passed in Regular Darkhast No.55/92. Shri Nagargoje, the learned counsel appeared for the respondent sole. The learned counsel for the parties agree that the Petition can be disposed of at the stage of admission. Hence, Rule. Rule made returnable forthwith. By consent of the parties, Petition is heard finally. 3] The petitioners are the judgment-debtors. They had filed Regular Civil Suit No.278/08 against the respondent herein seeking a declaration that the transaction dated 8/2/1966 in respect of Survey No.43/20B admeasuring 1 Acre and 38 Gunthas is null and void. The respondent had filed another Regular Civil Suit No.184/84 for a relief of permanent injunction restraining the petitioner who was defendant in the said suit from creating any obstruction to the possession of the respondent plaintiff in respect of Survey No.43/20B of Mauje Mangalpur, Tq. Sangamner. By judgment and order dated 4/10/1989, the learned Civil Judge, Junior Division, Sangamner 3 dismissed Regular Civil Suit No.278/80 filed by the petitioner plaintiff against the respondents whereas Regular Civil Suit No. 184/84 filed by respondent against the petitioner/plaintiff was partly decreed. Operative part of the order is reproduced below: “ The suit of the plaintiff i.e. Reg.Civil Suit No.278/80 is hereby dismissed with costs. The plaintiffs of that suit shall bear the costs of the defendant. Reg.Civil Suit No.184/84 is hereby partly decreed. The defendants are hereby permanently restrained from creating any obstruction to the possession of the plaintiff in S.No. 43/20B of Mouje Mangalpur, Tal. Sangamner, except the portion of their vasties. They are further permanently restrained from creating any obstruction to the cultivation of the plaintiff in the possession of the suit land excluding their vasties. The relief claimed by the plaintiff about the removal of the vasties and the Chappar of the defendants in the suit land and the mandatory injunction is hereby dismissed.” 4 4] The decree holder respondent herein filed Regular Darkhast No.55/90 for taking action against the petitioner judgment-debtor under Order XXI Rule 32(1) of C.P.C. Specific issue was framed as to whether decree holder proves that on 28/6/1992 and thereafter, the judgment debtors willfully failed to obey the order or decree for injunction passed by the said Court. After the evidence was led, the finding is recorded in the affirmative and the order was passed on 7/10/2009 as under : “1] J.Ds. No.1 to 4 are directed to remove the newly constructed house at Sur.No. 43/20B situated at “Mangalpur” within 15 days from the date of this order. 2] House property old house of the J.Ds. situated at Sur.No.43/20B, be attached U/O. 21 R.32(1) C.P.C. 3] J.Ds. shall pay the cost of this proceeding to the D.H. and shall bear their own cost.” 5] Inspite of the aforesaid order, the construction was not removed. Hence an application under Order XXI Rule 32(5) of C.P.C. was filed i.e. Exh.103 for appointment of Commissioner and removal of construction. The said application has been allowed. The Commissioner has been appointed to execute the order passed by the Court on 6/4/1996 below Exh.1 in the 5 enquiry under Order XXI Rule 32 of C.P.C. Police aid was also provided to the Commissioner for execution of the judgment and order. 6] Thus this Petition challenges the orders dated 6/4/1996 passed below Exh.1, and the order dated 7/10/2009 passed below Exh.103 by the executing Court. 7] The challenge to the order dated 6/4/1996 by filing this Petition on 18/11/2009, is highly belated and the Petition, therefore, cannot be entertained to that extent. The same is therefore, dismissed. 8] So far as the order dated 7/10/2009 is concerned, it is the consequential order passed for execution of the order dated 6/4/1996. The executing Court has acted in accordance with the Provisions of Order XXI Rule 32(5) of C.P.C. There is no illegality, perversity or jurisdictional error pointed out by the learned counsel for the petitioner in respect of challenge to this order. Hence, there is no substance in the instant Writ Petition. 9] In the result, the Petition is dismissed. Rule is discharged. No order as to costs. [R. K. DESHPANDE, J.] 6 umg/wp8036-09