1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 3469 OF 2010 (Janardan D. Chandurkar vs. Shobha P. Bhute & Anr.) with WRIT PETITION NO. 3470 OF 2010 (Praful M. Chandurkar vs. Shobha P. Bhute & Anr.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. AUGUST 27, 2010. Heard Shri Kendurkar, learned counsel for the petitioners – judgment debtors and Shri Shingne, learned counsel for respondent No.1 – decree holder. The contention of Shri Kendurkar, learned counsel is, the Executing Court has summarily dismissed objection raised by the petitioners ignoring mandatory requirements of Section 47 and order 21, Rule 97, 98 onwards. He contends that the law contemplates decision on such objections in execution itself and there cannot be any independent suit for said purpose. The adjudication on objection is made appelable as if it is an appeal against decree. His contention is, in this situation summary rejection of his objection by the Executing Court without framing issues and without permitting the petitioner an opportunity to lead evidence and to substantiate those objections is misconceived. He states that in appeal, these errors were sought to be rectified and hence application was moved before the appellate 2 Court for calling records of Special Darkhast for permitting the petitioners to lead evidence after issues were framed by the appellate Court. By the impugned order the appellate Court has called for records of Special Darkhast but not framed issues and has not permitted the petitioners an opportunity to lead evidence. The learned counsel, therefore, states that the mandatory procedure prescribed is being violated and an irreparable serious prejudice is being caused to the judgment debtors. Shri Shingne, learned counsel, on the other hand, states that before Executing Court, appropriate evidence was led by the parties and thereafter Executing Court has passed the judgment which has been assailed by the petitioners in appeals before District Judge – 17 at Nagpur. He contends that no case for grant of any leave under Order 41, Rule 27 of Civil Procedure Code has been made out and further according to him, there is no question of appellate Court framing any issues. His argument is any interference by this Court in writ jurisdiction at this stage will indirectly amount to allowing the appeal finally. In writ jurisdiction I do not find it necessary to go into the merits of the controversy. The jurisdiction of appellate Court has been appropriately invoked and if the appellate Court finds that the Executing Court has failed to follow mandatory provisions of law, the appellate Court can take further appropriate corrective 3 steps. Framing issues and permitting additional evidence at this stage will be pre-empting that consideration by appellate Court. I, therefore, do not find anything wrong with the application of mind by the appellate Court. With liberty to the petitioners to raise this grievance again after the final adjudication of appeal, present writ petitions are rejected. However, in the facts and circumstances of the case, there shall be no order as to costs. JUDGE *GS.