1 WP 349/10 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 349 OF 2010 Nazeer Ahmad Haji Ali Pophlunkar .. Petitioner V/s Gayasuddin Gafoor Khan .. Respondent Ms. Gauri Godse for the petitioner. Mr. Nitesh Bhutekar for the respondent. CORAM : D.G. KARNIK, J. DATE : 5TH AUGUST 2010 P.C. : 1. Heard learned counsel for the petitioner. 2. By this petition, the petitioner challenges the order dated 2 December 2009 passed by the executing court directing the petitioner to hand over possession of shop no.3 to the respondent – decree holder in execution of a decree. 3. The petitioner is an owner and landlord of the property. The respondent was a tenant of a commercial premises situated on the ground floor of the petitioner’s building where he was running a flour mill. In a suit for possession filed by the petitioner against 2 WP 349/10 the respondent, a compromise decree was passed. Under the terms of the compromise decree, the respondent agreed to cooperate with the petitioner for redevelopment of the property. The respondent agreed to hand over possession of his existing shop premises and the petitioner agreed to construct new building and let out one shop in the reconstructed building to the respondent. The petitioner also agreed to provide to the respondent alternative temporary accommodation till the construction of the new building. As the petitioner did not provide the temporary shed as per the consent decree, the respondent filed an execution petition for a mandatory direction to the petitioner to construct a temporary shed and hand over possession thereof. Though the execution petition was filed in the year 1996, the petitioner successfully delayed the execution by adopting dilatory tactics 4. In the meanwhile, new construction was completed by the petitioner. Thereafter the respondent applied to the executing court that since the new construction was completed he may be granted possession of the shop in the new building as per the compromise decree. That request has been granted. The order granting that prayer is impugned in this petition. 3 WP 349/10 5. Learned counsel for the petitioner submitted that since the original Darkhast was for a mandatory order for construction of the temporary shed only and not for handing over of the possession of new structure, the executing court erred in issuing the warrant for possession of the shop in the new structure. In my view, the argument is yet another technical objection raised by the petitioner to avoid compliance of the consent decree. There is no dispute that under the consent decree the petitioner is required to hand over the possession of the shop to the respondent. The objection that since the original Darkhast is only for possession of a temporary accommodation which was to be provided to the respondent and therefore final order cannot be passed does not merit any consideration. As the new construction has been completed during the pendency of the executing proceeding, the Court was entitled to take note of it and execute the decree which also is for the possession of the reconstructed premises. The impugned order meets the ends of justice and is in accordance with the consent decree. The writ petition is rejected summarily. (D.G. KARNIK, J.)