1 wp 6355.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6355 OF 2011 1. Smt. Shailaja W/o Anant Sidhaye, Age : 77 Years, Occu. : Household, 2. Jayant S/o Anant Sidhaye, Age : 46 Years, Occu. : Business, Both R/o Municipal House No. 200, Baliram Peth, Jalgaon, Dist. Jalgaon. .. Petitioners Versus 1. Mahila Sahkari Mandal Ltd., Jalgaon, Near Phule Market, Mahatma Gandhi Marg, Through its Secretary. 2. Priya W/o Jayant Sidhaye, Age : 40 Years, Occu. : Household, R/o C/o Varsha Jayant Oak, Oak Wada, Shani Peth, Jalgaon, Dist. Jalgaon. .. Respondents Shri L. V. Sangeet, Advocate h/f Sau. Minakshi L. Sangeet, Advocate for Petitioners. Shri K. C. Sant, Advocate for the Respondent No. 1. The respondent No. 2 is deleted. 2 wp 6355.11 CORAM : S. V. GANGAPURWALA, J. DATE : 13TH SEPTEMBER, 2011. ORAL JUDGMENT : . At the outset Shri Sangeet, the learned counsel seeks leave to delete the respondent No. 2. The respondent No. 2 is deleted at the risk of petitioners. 2. Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing. 3. The present respondent No. 1 is a decree holder who had obtained the decree against Priya W/o Jayant Sidhaye i. e. wife of present petitioner No. 2 for eviction and damages. After the decree, the present respondent No. 1 filed a petition for execution. In the said execution proceedings the petitioners filed objection. The petitioners were allowed to lead evidence twice. The petitioners remained absent. Thereafter again filed application seeking leave to adduce evidence. Said application is rejected. Aggrieved thereby the present petition is filed. 4. Shri Sangeet, the learner counsel for petitioners submit that the petitioners have stated the reasons for not being in a position to lead the evidence. The Executing Court should have 3 wp 6355.11 taken the said fact into consideration. But only on the ground that for earlier three times the petitioners had failed to adduce the evidence, the Trial Court has rejected the application. According to the learned counsel the Court has taken a hyper technical approach and the petitioners deserve to be given an opportunity to adduce evidence. 5. Shri Sant, the learned counsel for the respondent No. 1/decree holder submits that the petitioners are raising false and frivolous objections. The petitioners did not lead the evidence inspite of availing opportunity. The Executing Court had directed the parties to lead evidence in the year 2008. The petitioners failed to lead the evidence. Thereafter, again filed an application after about a year for adducing evidence. The Trial Court allowed the said application, but still the petitioners did not lead any evidence. The application Exhibit 59 was again filed after one year of the earlier application and vide said application again a prayer is made to allow the petitioners to adduce the evidence. The above said facts would show that the petitioners are intentionally protracting the matter. In fact, the petitioners did not have any concern with the suit property. Though earlier opportunities were given, same were not availed. The 4 wp 6355.11 rent/damages are of more than Rs. 2,50,000/- till August 2011. In view of that Shri Sant, the learned counsel submits to reject the petition. 6. No doubt, the petitioners have been granted opportunity to adduce the evidence, but they have not adduced the same. The application Exhibit 59 is given by the petitioners seeking permission to adduce the evidence. The objection petition is substantive one. The reasons were stated by the petitioners in the said application. The Court should have taken into consideration the said aspect. The petitioners could have been mulct with the cost for the said purpose. For the reasons stated in the application Exhibit 59, I deem it appropriate to give one more opportunity to the petitioners to adduce the evidence. However, at the same time I direct the petitioners to pay cost and some amount towards rent/damages. 7. In the result I pass the following order : O R D E R A) The impugned order passed below Exhibit 59 is quashed and set aside. B) The petitioners are allowed to adduce the evidence 5 wp 6355.11 subject to the petitioners depositing Rs. 25,000/- in the Executing Court within a period of four (4) weeks from today, so also pay cost of Rs. 5,000/- to the respondent No. 1/decree holder. C) The decree holder shall be entitled to withdraw the amount of cost of Rs. 5,000/-, so also the amount of Rs. 25,000/- which would be deposited by the petitioners. D) The petitioners on compliance of amount of deposit of Rs. 25,000/- and Rs. 5,000/- respectively within a period of four (4) weeks from today are entitled to adduce the evidence. E) The petitioners shall co-operate with the proceedings. F) The Executing Court shall decide the objections raised by the petitioners expeditiously, in any case within a period of four months. G) Rule accordingly is made absolute in above terms. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Sept. 11