1 WP-3408.11.sxw lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3408 OF 2011 Shri Kalyan Narayan Sapkal & ors. : Petitioners versus Marutrao Shankarrao Kale and ors. : Respondents. Mr. Rahul S Kadam for the Petitioners. Mr. Abhijit P Kulkarni for the Respondent Nos.1 to 6. CORAM : R M SAVANT, J. DATE : 14th November 2011 P.C. 1 The above Petition takes exception to the order dated 16/3/2011 by which order the Application Exhibit 42 filed by the Respondents herein i.e. the original Plaintiffs came to be allowed and resultantly the proceedings for execution of the compromise decree came to be disposed of. 2 The Respondent Nos.1 to 6 are the original plaintiffs and the petitioners are the original defendants. The Plaintiffs had filed Regular Civil Suit No.182/04 challenging the order passed by the Tahsildar dated 29/4/1997 granting a right to way to the Petitioners up to the point of Tharicha Rasta. The said suit was compromised by the parties by entering into a compromise dated 28/2/2007 in terms of which a decree came to be passed. A map showing the proposed road is annexed to the above Petition. The said decree was put in execution vide Regular Darkhast No.17/2007 by the Petitioners. In the said Darkhast two applications were filed viz. Application- 2 WP-3408.11.sxw Exhibit 19 and thereafter Application Exhibit-29 on the ground that decree was unexecutable in view of the fact that it was not possible to construct a road towards western side up to Bhavaninagar Tawashi Road in view of the fact that the land owners towards western side of the proposed road were not the parties to the said suit. The said applications were rejected by the Executing Court by the orders passed thereon holding that the Executing Court could not go beyond the decree. The Respondents thereafter filed an Application-Exhibit 42 invoking Section 47 of the Code of Civil Procedure on the ground that the decree was not executable in view of the fact that the persons who had their lands towards western side were not parties to the proceedings. The said application came to be allowed by the impugned order dated 16/3/2011. The principal ground on which it was allowed was that the land holders of the Gat numbers on the western side of the proposed road were necessary parties to the suit and for non-joinder of the same in the suit, the decree in question was null and void. The trial Court held that the legality and validity of the decree could be challenged in the execution proceedings. 3 In my view, the reasons mentioned by the trial Court for holding that the decree is unexecutable on the ground that the land owners towards western side were not the parties to the suit cannot be faulted with. The decree as such, which contemplates construction of the road on the western side up to Bhavaningar Tawashi in the said circumstances is unexecutable. 3 WP-3408.11.sxw 4 The learned counsel for the Petitioners would contend that the road in question can be constructed mid way up to Tharicha Rasta and which is actually the relief granted to the Petitioners by the Tahsildar in exercise of the powers under the Mamlatdar Courts Act. 5 I am afraid such a submission cannot be accepted in the light of the compromise decree. For the execution of the said decree as a whole, the Petitioners had filed Regular Darkhast No.17/2007. The said decree cannot be allowed to be executed in piecemeal manner as is sought to be claimed by the Petitioners. In my view, no fault can be found with the impugned order dated 16/3/2011. The above Writ Petition is accordingly dismissed. However, it would be open for the parties, if so advised to file appropriate application for setting aside the said compromise decree in view of the fact that it cannot be executed as held by the Executing Court on account of the land holders of the Gat numbers on the western side being not party to the proceedings, and if such an application is filed by either of the parties, the same to be considered on its own merits and in accordance with law without being influenced by the instant order. [R.M.SAVANT, J]