1 WP 9099.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9099 OF 2011 1. Janmohamad S/o Noormohamad Tamboli (Died) through legal heirs 1A Kadar S/o Janmohammad Tamboli, Age : 50 Years, Occu. : Business, R/o Bundelpura, Beed, Tq. & Dist. Beed. 1B Rahimuddin S/o Janmohamad Tamboli, Age : 47 Years, Occu. : Business, R/o As above. 1C Shamsuddin S/o Janmohamad Tamboli, Age : 52 Years, Occu. : Business, R/o As Above. 1D Rafiuddin S/o Janmohamad Tamboli, Age : 40 Years, Occu. : Business, R/o As above. 1E. Jiyauddin S/o Janmohamad Tamboli, Age : 37 Years, Occu. : Business, R/o As Above. 2. Atik Ahmed S/o Yahha Ahmed, Age : 57 Years, Occu. : Business, Prop. of Paradise Shoe Center, Tilak Road, Malives, Beed, Tq. & Dist. Beed. .. Petitioners 2 WP 9099.11 Versus Shaikh Mahboob S/o Shakkarji Choudhari, (Died) through legal heirs Shaikh Shabbir S/o Shaikh Mahbbo Choudhari, Age : 50 Years, Occu. : Business & Agril., R/o Dhondipura, Sarafa Galli, Beed, Tq. & Dist. Beed. .. Respondent Shri S. P. Deshmukh, Advocate h/f Smt. C. S. Deshmukh, Advocate for Petitioners. Shri G. K. Naik (Thigle), Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 22ND DECEMBER, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The present respondent has filed execution proceedings bearing R. D. No. 101/2003 for execution of the crompromise decree dated 26.07.2002 passed by the Appellate Court in R.C.A. No. 122/1996. The executing court vide order dated 12.10.2011 held that the execution petition is maintainable in the eye of law and directed the decree holder to proceed further. The said order came to be passed on Exhibit 01, in view of the say filed by the judgment debtor/present petitioners at Exhibit 18 wherein an 3 WP 9099.11 objection regarding maintainability of the execution petition was raised. 3. Shri Deshmukh, the learned counsel for the petitioner submits that the order impugned is passed without hearing the present petitioners. The learned counsel submits that even otherwise the execution proceeding is not maintainable as the same is pursuant to the compromise decree. The same could not have been put forth for execution, in view of the terms of the said compromise decree. According to the learned counsel said compromise decree is a contract between the parties superimposed with the seal of the Court. All other factors are required to be proved. 4. Shri Thigale, the learned counsel for the respondent submits that the judgment debtor remained absent though ample opportunity is given to the judgment debtor. The execution petition is perfectly maintainable. The compromise decree can be executed. The executing court has properly considered this aspect. 5. Perusal of para 5 of the order, it is manifest that the order has been passed without hearing the judgment debtor. I may not enter into the debate as to whether opportunity was given to the 4 WP 9099.11 judgment debtor to argue the matter or not. Suffice to state that the execution petition is pending since seven years. The legal issues are involved in the matter and as such I deem it appropriate to afford one more opportunity to the petitioner to put forth his case on merits. 6. In the light of the above, the impugned order is quashed and set aside with a direction that the executing court shall decide the point about maintainability of the execution petition afresh after affording the parties opportunity to put forth their case. Rule is accordingly made absolute in above terms, however, with no order as to costs. 7. It is made clear that I have not considered any of the arguments advanced by the learned counsel for respective parties on merits of the matter. All points are kept open. The executing court shall decide the said aspect of maintainability expeditiously and preferably within a period of three weeks. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Dec. 11