1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR W.P.NO.2257 of 2010 Mohd.Anis Ul Haq Mohd.Jabhar ..vs.. Smt.Kaushalyabai wd/o H.Agrawal and ors. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr.A.J.Thakkar Adv. for the petitioner. Mr.Ramesh Darda Adv. for the respondents. CORAM : B.P. DHARMADHIKARI, J. DATED : JULY 30, 2010. 1. Heard finally. 2. The learned counsel for the petitioner states that the petitioner, who is in occupation of property against which execution is filed, has raised objection under Section 47 of the Code of Civil Procedure and it was dismissed in default on 7/11/2009. On same day, the petitioner filed application for restoration and on that day the matter was adjourned to 9/11/2009. On 9/11/2009, the petitioner was directed to file affidavit in support of his application dated 7/11/2009 and matter was adjourned to 19/11/2009. On 19/11/2009, the petitioner pointed out to executing court that he has filed application under section 24 C.P.C. and sought adjournment and also stay of execution. Executing court granted him time till 24/11/2009 to produce copy of that M.J.C. According to learned counsel, two inconsistent orders are passed in the matter by executing court. He has also relied upon the judgment of the Apex court reported in AIR 1969 SC 971 (Shivashankar Prasad 2 Sah and anr. ..vs.. Baikunth Nath Singh and ors.), particularly paragraph no.6, to urge that the said dismissal of petition under Section 47 C.P.C. in default does not operate as res judicata and the same objections can be filed again. He, therefore, contends that the objection already on record ought to have been restored back to file. 3. Advocate Shri Darda, learned counsel for respondents no.1 to 5, has invited attention to reply as filed on record. According to him, the petitioner lacks status in execution proceedings and therefore, has deliberately permitted the proceedings to be dismissed in default. He points out that the father of petitioner is already held to be trespasser in earlier round of litigation and then his sons tried to claim an independent title. In civil suit filed against them by present respondent nos. 1 to 5, they have claimed exclusive possession and also pointed out that present petitioner is one of the legal heirs but he is residing at Pune. Advocate Darda states that after crossing all these hurdles when execution has reached its final stage, the petitioner, who is residing at Pune, has rushed to help his brother and filed the objection. 4. He further argues that here on 7/11/2009 the petitioner was to be cross-examined and he waited till dismissal of his objection in default. According to him, after giving due opportunity to the petitioner to substantiate his contention, the matter came to be dismissed. He further argues that the objectors will continue to file applications raising objections under Section 47 one after the other and permit the same to be dismissed in default so as to see execution never proceed further. 5. This court while issuing notice in the matter directed the petitioner to deposit an amount of Rs.50,000/- and the petitioner has deposited the amount of Rs.50,000/- with Registry of this court. 6. The facts before this court show that on 7/11/2009 the 3 matter was for cross-examination and the objection was dismissed in default at about 3.30 in the after noon. Thereafter immediately application for restoration has been filed. In this situation, I am not inclined to make any observations about the bona fides or mala fides of petition at this stage. The petitioner shall appear before executing court on 10/8/2010 and shall complete his examination- in-chief as noted in order below Exh.18 on 7/11/2009. Thereafter, present respondent nos.1 to 5 shall cross-examine him. The court shall proceed further from that stage onwards on merits of the matter. 7. In view of this opportunity given to the petitioner, it is apparent that all subsequent applications filed by him and all orders passed by the executing court thereon are rendered infructuous. The executing court shall decide the objections restored by this court on its own merits and uninfluenced by its latter orders and by observations, if any, made by this court. 8. The petitioner shall not seek any adjournment on the ground that his Advocate is not available. 9. The amount deposited the Registry of this court shall be paid to the parties in subsequent proceedings. 10. The petition is thus partly allowed by making rule absolute accordingly. JUDGE chute