1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1623 OF 2010 M/s.P.B.Moharir and Associates Petitioner versus Smt.Indirabai V. Gorwadkar and others Respondents P.N.Joshi for petitioner. S.M.Gorwadkar for respondent. CORAM : A.S.OKA, J. DATE : 11th March 2010 PC : 1. Heard learned counsel for the petitioners and learned counsel for the respondents. By this writ petition under Article 227 of the Constitution of India, the petitioners have challenged the orders dated 21st January 2010 passed by the learned Trial Judge on applications at Exhibits-51 and 53 in pending execution application. 2. There is a decree for possession passed in favour of respondents 1a to 1c which has attained finality. The present petitioner is the second defendant-second judgment debtor in the execution application filed by respondents 1a to 1c. Various objections were raised by the petitioner in the execution application. The said objections were raised by filing an application at Exhibit-38. Apart from filing objections at Exhibit-38, an 2 application was made by the petitioner at Exhibit-51 under Rule 10 of Order I of Code of Civil Procedure, 1908 (hereinafter referred to as "the said Code") for impleading parties. Another application was made at Exhibit-53 by the petitioner praying for framing issues. Orders were passed by the learned Trial Judge on applications at Exhibits-51 and 53 directing that the said applications will be considered after hearing of the application at Exhibit-38. 3. Another application was made by the petitioner at Exhibit-47 under Rule 9 of Order XXXVI of the said Code for appointment of City Survey Officer as the Court Commissioner. On the execution application, the learned Trial Judge passed an order on 21st January 2010. The learned Judge observed that the application at Exhibit-38 will have to be considered first as objections have been raised by the petitioner to the executability of the decree. 4. The learned counsel for the petitioner submitted that an inquiry will have to be held by the learned Trial Judge on the basis of application at Exhibit-38 as all objections raised by the petitioner will have to be decided by the Executing Court in view of section 47 of the said Code. He submitted that appropriate issues will have to be considered by the Trial Court while making adjudication and the petitioner will have to be permitted to lead oral and documentary evidence. The learned counsel for the petitioner stated that broadly the petitioner desires to examine eight witnesses and produce nine documents, the list of which is 3 tendered across the bar, which is marked "X" for identification. He submitted that the hearing of the other applications cannot be postponed and all applications will have to be considered together and, therefore, the Trial Court has committed an error by postponing the hearing of the other applications. 5. I have given careful consideration to the submissions. Application at Exhibit-51 has been made by the petitioner under Rule 10 of Order I of said Code for impleading the parties to the execution application. Such an application could not have been maintained in the execution application and in any case such application has nothing to do with the inquiry under section 47 of the said Code. Therefore, the learned Trial Judge was justified in postponing the consideration of the said application. As far as application at Exhibit-53 is concerned, the prayer therein is for framing an issue as regards executability of the decree and for permitting the petitioner to adduce the evidence. It goes without saying that while considering the objections raised by the petitioner in accordance with section 47 of the said Code, the Trial Court will have to consider appropriate issues and permit the petitioner to adduce evidence. While passing the order below Exhibit-1 dated 21.1.2010, the learned Judge has observed that he will have to consider and decide the application at Exhibit-38 and if he finds any merit in the application, then he will have to frame issues and permit the parties to adduce evidence. The objections to the executability of the decree have been raised by the petitioner by filing an application at Exhibit-38. Those objections will have to be 4 decided by the learned Trial Judge by permitting the parties to adduce the evidence and to that extent the order passed below Exhibit-1 will need modification. In view of the modification proposed to be made, the application at Exhibit-053 will not survive and the same will have to be disposed of. 6. As far as application at Exhibit-47 is concerned, at this stage it cannot be said that local investigation is necessary by appointing Court Commissioner. After the parties adduce evidence on the issue of executability of the decree, the Court will have to consider the said application and pass appropriate order thereon. 7. Considering the fact that the decree has attained finality, adjudication as required by section 47 of the said Code will have to be made by the Trial Court as expeditiously as possible and within the time frame fixed by this Court. The petitioner has already made a statement that he desires to examine about eight witnesses and he will produce about nine documents. 8. Hence, the writ petition is disposed of by passing following order :- A) The order below application at Exhibit-51 is confirmed; B) While deciding the application at Exhibit-38, the Trial Court shall decide all the objections raised by the petitioner to the executability of the decree. The Trial Court will have to consider necessary issues and will 5 have to permit the parties to adduce evidence. The Trial Court will have to complete the said exercise as expeditiously as possible and in any event on or before 31st July 2010. The petitioner shall co-operate with the Trial Court for early conclusion of the inquiry and the petitioner shall not seek adjournments on any unreasonable grounds; C) The application at Exhibit-47 shall be heard and decided by the Executing Court after the parties adduce evidence; D) In view of this order, the application at Exhibit-53 does not survive and the same is disposed of; E) The petition is disposed of in above terms; F) The Trial Court to act on an authenticated copy of this order. 9. At this stage learned counsel for respondent nos.1a to 1c prays that the said respondents be permitted to file an application before the Executing Court for directing the petitioner to deposit the compensation on the ground that pendency of application under section 47 of the said Code has a result of granting stay to the execution of the decree for possession. Liberty is granted to the said respondents to file an application before the Executing Court. All contentions of the parties on the said application are kept open. (A.S.OKA, J.)