1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.594 OF 2011 ( RAYMOND BASIL MACWAN...VS..SMT. GRACE LUCAS DENIEL & OTH.) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr.V.P. Panpalia, Advocate for Petitioner. Mr. P.B. Patil, Advocate for Respondent No.1. CORAM : SMT. VASANTI A. NAIK, J. DATE : FEBRUARY 11, 2011. Heard the learned counsel for the parties. By this petition the petitioner impugns the order passed by the executing Court on 24.12.2010 dismissing the application filed by the petitioner under Order 1 Rule 10 of the Code of Civil Procedure. Respondent No.1 and one Anjelina had initiated proceedings for recovery of a house property jointly owned by them. During the pendency of the suit filed before the Small Causes Court Anjelina died in October, 2004. The Small Causes suit was decreed on 05.08.2008 in favour of respondent No.1 Smt. Grace and Anjelina. Smt. Grace filed execution proceedings before the executing Court at Amravati. In those execution proceedings, the petitioner applied under Order 1 Rule 10 of the Code of Civil Procedure for seeking recovery of the property by representing the deceased Anjelina. Respondent No.1 Smt. Grace seriously opposed the prayer made by the petitioner in the said application and also denied the relationship of the petitioner 2 with deceased Anjelina. The executing Court by the impugned order dated 24.12.2010 rejected the application. On hearing the learned counsel for the parties and on perusal of the impugned order dated 24th December, 2010, it appears that the executing Court did not commit any error in rejecting the application filed by the petitioner. The executing Court observed that Anjelina had died during the pendency of the proceedings in the Small Causes Court in the year 2004 and though the suit was decreed in the year 2008 and the appeal filed against the judgment and decree was decided in the year 2009, the petitioner had not applied before the Courts for joining him as a party to the litigation. The parties to the execution proceedings had denied that the deceased Anjelina had married the petitioner and that he was her husband. In such circumstances, the executing Court held that if the petitioner had any rights or share in the suit property he can file a separate suit and enforce his right. The Court held that he was not a necessary party for seeking possession of the suit property from the tenants and the decree could be easily and effectively executed even in his absence. The executing Court committed no error in rejecting the application filed by the petitioner under the provisions of Order 1 Rule 10 of the Code of Civil Procedure. The judgment reported in 1998(3) Mh.L.J. 1 and relied on by the counsel for the petitioner is in noway applicable to the facts of this case. The submission made on behalf of the petitioner that the application filed by the petitioner should have been treated as an application under Order 21 Rule 97 of the Code of Civil Procedure is also liable to be rejected, as firstly, the application was not filed under 3 that provision of law and secondly because the petitioner cannot be a person who can raise an objection under Order 21 Rule 97 as he has not obstructing the decree but was claiming the possession through the decree holder i.e. Anjelina by claiming to be her husband. Hence, in such circumstance, it also cannot be said that the judgment reported in 2009 (12) SCC 175 holding that the jurisdiction of the Court cannot be taken away merely because a wrong provision of law is mentioned by the party, was applicable to the facts of the case. Since the impugned order dated 24.12.2010 is just and proper the same cannot be interfered with in exercise of the writ jurisdiction. The writ petition fails and is dismissed with no order as to costs. JUDGE RR..