1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.91 OF 2005 Mahemudabi w/o.Syeed Amir and others PETITIONERS VERSUS Mujawed S/.o.Chandpasha and others RESPONDENTS Mr.Milind Patil, learned counsel for petitioners. Mr.K.S.Chavan, learned counsel for respondent no.1,2,5,7,9,13,14,15 (Absent) Application is dismissed against respondent no.10,12, 20 to 22 Name of Respondent no.3,4,6,19 is deleted. (CORAM : A.V.POTDAR, J.) DATE : 30/03/2010 PER COURT : 1. By the present civil revision application, the applicants have challenged the order passed below Exh.1 in execution proceeding no. 1/2002, vide judgment and order dated 30/11/2004. 2. Such of the facts which are necessary for the decision in the civil revision application can be summarized as : The applicant/petitioner,who are the original plaintiffs in RCS No. 32/1998 and 59/1994, have obtained the decree of perpetual injunction against the respondents which suits were filed in the Court of Jt.Civil Judge, J.D. Pathari.These judgments and decrees were challenged by the 2 respondents by preferring RCA No.171/2001 and 172/2001, which appeals came to be dismissed by the judgment and order of 4 th Additional District Judge, Parbhani dated 27/02/2003. According to the petitioners that even though the respondents lost the battle in both the courts below, they are obstructing the possession over the suit property of petitioners, hence execution proceeding was filed in the Court of Civil Judge, J.D. Pathari, wherein assistance of the Court was required for recovery of amount under Order 21 Rule 43 of CPC and also claimed for issuance of jail warrant for breach of decree of injunction under Order 21 Rule 38 of CPC. So far as the attachment warrant for recovery of amount under Order 21 Rule 43 of CPC is concerned, is about the recovery of costs of the proceedings in the Lower Court as well as in the First Appellate Court, which is not the subject matter under challenge under the impugned order. The subject matter of the impugned order under challenge is whether the respondents caused obstruction to the possession over the suit property of the petitioners. It appears from the documents annexed alongwith the present civil revision application as well as the impugned order that, in support of the case of petitioners in the execution proceeding No.1/2002, the decree holder Moosa examined himself as well as examined one witness Kishan on his behalf. The evidence to be read as a whole as in the evidence of the decree holder Moosa and his witness, it is tried to bring on record that the possession of the decree holder was obstructed at the hands of respondents, but in the cross examination of the petitioners, the fact reveals that the alleged incident occurred on 04/08/2002 and at that time, stones were pelted by some of the respondents, but unable to disclose the names of those respondents. According to the witness of 3 the petitioners, he supported the claim of the petitioners that the stones were pelted on the house of the petitioners, but unable to disclose the names of those persons, as according to him, due to night hours and darkness, he is unable to identify those persons. At the most, this act amounts to the criminal offence for which the available remedy is to file the complaint against the offender and not the decree to be executed in terms of order 21 rule 38 of CPC. Further it is to be noted that in the affidavit filed on behalf of the judgment debtor that they are in peaceful possession of part of the suit property and taking advantage of the decree of perpetual injunction. The decree holder petitioner intends to dispossess them. So far as this aspect is concerned, there is no cross examination that in the breach of decree of perpetual injunction, the respondents took forcible possession of the part of suit property. On the contrary, in the cross examination of the witness for judgment debtor, there is only suggestion that on 09/01/2002 and on 04/08/2002, some of the respondents gave threats to the petitioners, but who are they, the cross examination is silent on that point. There is no allegation about attempt to obstruct the possession or attempt to forcibly dispossess the petitioners. It is considered by the Trial Court in his judgment in para no.6 and 7 of the impugned order. Thus no case made out to interfere with the order passed., which is impugned in this civil revision application. Civil revision application sans any merit, hence rejected. (A.V.POTDAR, J.) khs/MAR 2010/cra91-05