:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 1030 OF 2008 PETITION NO. 1030 OF 2008 PETITION NO. 1030 OF 2008 Smt. Kaushabai Nivrutti Gite ..petitioner V/s Miss Vandana Santu Jadhav & Ors. .Respondents Mr. Milind M. Sathaye for the petitioner Mr.R.N. Gite for respondent 1A & 1B CORAM CORAM CORAM : A.A. SAYED, J. : A.A. SAYED, J. : A.A. SAYED, J. DATE DATE DATE : 2ND MAY, 2008 : 2ND MAY, 2008 : 2ND MAY, 2008 P.C. 1. Rule. By consent rule made returnable forthwith and heard finally. 2. By this petition, the order dated 16-11-2007 passed by the Joint Civil Judge, J.D. Niphad in execution proceeding is impugned whereby the application of the petitioner to set aside order dated 15th March, 2001 has been rejected. 3. The dispute is between decree holders. The suit was filed by two sisters. The petitioner is one of them. The decree came to be passed on 25-7-1990. During the pendency of the Appeal, the younger sister died. However, the respondents, who are the heirs of the deceased younger sister were not brought on :2: record. Thereafter, the petitioner who is the elder sister and who was also the original decree holder filed an application for execution. In the execution proceedings, the respondents being the heirs of the deceased younger sister, made an application to be joined as party to the execution application. Accordingly the the names of the respondents as decree holders came to be added as defendant No. 4 & 5 in the execution proceedings. Thereafter the respondents made another application to transpose them as decree holders and for amendment to the execution application to the extent of determining the shares of the parties, which application was allowed vide order dated 15.3.2001. It is this order dated 15.3.2001 which was sought to be set aside in an application before the executing court, made by the petitioner, which came to be rejected by the impugned order. Hence the present petition. 4. The contention of the learned Counsel for the petitioner is that the decree dt. 25.7.1990 did not determine the shares of the parties and the executing Court could not have determined the shares by the order dated 15.3.2001 and therefore, the order dated :3: 15-3-2001 came to be wrongly passed. He has relied upon the he decision in the case of Vedic Girls Senior Vedic Girls Senior Vedic Girls Senior Secondary Secondary Secondary School Arya Samaj Mandir, Jhajja V. Rajwani School Arya Samaj Mandir, Jhajja V. Rajwani School Arya Samaj Mandir, Jhajja V. Rajwani and and and others, others, others, reported in 2007 (5) Mh.L.J.384 wherein it is held that the executing court is to act within the bounds of the decree and cannot travel beyond its scope without invocation of the provisions of section 47 of C.P.C. 5. The learned Counsel for the respondents on the other hand, submitted that the application Exh. 39 in which the order dated 15-3-2001 came to be passed was in execution and since the order is passed in 2001 the petitioner cannot now in 2007 call in question the said order dated 15.3.2001. He has further relied upon in the case of Tiko (Smt) and others V. Lachman, Tiko (Smt) and others V. Lachman, Tiko (Smt) and others V. Lachman, reported in 1995 Supp (4) SCC 582, to submit that though technically speaking the executing Court could not go beyond the decree, the executing Court in the present case happens to be the Court which passed the decree and it was therefore, open to that Court to treat the application as an application made before the decretal Court and proceed to dispose of the same in accordance with law and accordingly in the present :4: case direction was given by the court that the application for amendment of the plaint and consequent amendment of the decree was made in the original suit proceedings. Relying upon this decision and section 47 of C.P.C., the learned Counsel for the respondents submitted that all questions arising between the parties to the suit in which the decree was passed or their representatives, relating to the execution, discharge or satisfaction of the decree is to be determined by the Court executing the Court and not by a separate suit. 6. I have heard the learned Counsel for the parties at length and perused the material on record including the impugned order. The application of the respondents to be joined as co-decreeholders, was contested by the petitioner wherein the order dated 15.3.2001 came to be passed. Undisputedly, against the order dated 15-3-2001 no further proceedings were filed. The present application in the Trial Court has been filed in the year 2007. No cogent reason has been given as to why the application was made at such belated stage. Once the order dated 15.3.2001 has attained finality, the petitioner cannot now raise a :5: technical plea that since the actual shares were not determined by the Court which passed the decree such division by executing a Court cannot be permitted. Thus the petitioner,on one hand accepts the decree, however, on the other hand contends that the decree in so far as respondents are concerned cannot be said to be executable as the decree does not determine the shares of the parties and therefore the order dated 15.3.2001 is wrongly passed. The petitioner cannot be permitted blow hot and cold at the same time. 7. For the reasons mentioned aforesaid, I find that the trial Court has rightly rejected the application of the petitioner and the impugned order cannot be faulted. I find no infirmity or illegality in the impugned order so as to set aside the same in exercise of supervisory jurisdiction of this Court under Article 227 of Constitution of India. 8. Writ petition is dismissed. Rule discharged. No costs. ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)