1 wp5507-11.sxw jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5507 OF 2011 Kisan Nivrutti Vaidya .. Petitioner Versus Bhagwan Pila Vaidya,Since Deceased through L.Rs. and others .. Respondents Mr. Ashok Tajane, for the Petitioner Mr. Vijay Killedar for respondent Nos.1A and 1B CORAM: R. M. BORDE, J. DATED : 24th August, 2011 P. C. 1. Heard the learned counsel appearing for the parties. 2. The objections raised by the petitioner-judgment debtor to the execution of the decree has been turned down by the learned trial Court in view of the orders passed below Exh.54, 55, 59, 62 and 64 in Regular Darkhast No. 75 of 2006 on 17th June, 2011. The Suit being Regular Civil Suit No. 388 of 1991 presented by the respondent-original plaintiff claiming removal of encroachment over an area to the extent of 16 R,was decreed on 28/8/2000 by the III Joint Civil Judge, 2 wp5507-11.sxw Junior Division, Nashik. An Appeal preferred against the decree by the defendant, petitioner herein being Regular Civil Appeal No. 489 of 2002 came to be dismissed on 19th July, 2005. 3. The judgment and decree passed by the trial Court has attained finality. It is case of the plaintiff that the defendant has committed encroachment over an area to the extent of 16 R and the plaintiff-respondent herein, claimed recovery of the possession of the encroached portion and also claimed mesne profit. The contention of the defendant in the suit is that he has not committed encroachment and even if it is assumed that he is in possession of some excess area, his possession is continuous, uninterrupted and by passage of time, he has become owner by adverse possession. 4. The plaintiff presented an application, seeking execution of the decree, which is registered as Regular Darkhast No. 75 of 2006. The defendant- judgment debtor has tendered number of applications, raising objections to the execution of the decree. The substance of the objections is that there is a public road passing along the boundary of the 3 wp5507-11.sxw land belonging to the defendant and if the area covered by the road, is taken into account, it shall have to be presumed that the defendant has not committed encroachment. The defendant also raised objection to the measurement carried out earlier and contends that during measurement carried out at subsequent point of time at the instance of the defendants, it was founds that he has not encroached upon any portion. The defendant also contends that there is an orchid grown by the defendant in the area ad-measuring 15 R and the standing crop of groundnut is in existence. The defendant has right to harvest the crops and the decree holder cannot be permitted to take possession along with the standing crops. It is also contended that the decree holder has not expressed his willingness to deposit the cost of orchid (grape garden). 5. The executing court has considered all the objections raised by the defendant- judgment debtor and found that there is no substance in the objections raised by the judgment debtor. The objections are raised merely to delay the execution of the decree. The trial Court has issued 4 wp5507-11.sxw direction of ascertainment of value of the standing crops so as to enable the decree holder to deposit the amount towards costs. The decree holder is also directed to deposit the value of the standing crops and thereafter only the possession of the disputed area is to be handed over to the decree holder. 6. I have gone through the the impugned order and applications presented by the judgment debtor. 7. The counsel appearing for the petitioner placed reliance on the judgment in the matter of Sarojini Visitacao Nunes Vs. Lennet Godinho (Smt) and ors., reported in 2008 B.C.I.105. In my opinion , the reported judgment cited at Bar has no application to the facts and circumstances of the instant matter. 8. The trial court has considered the objections in proper perspective and turned down the various applications tendered by the judgment debtor with a view to raise objections to the execution proceedings. It is to be noted that the decree holder has instituted the proceeding in the year 1991 and the decree was passed by the trial Court in the year 2000. The plaintiff is kept away from the fruits of 5 wp5507-11.sxw the decree for several years because of the various objections raised by the defendant-judgment debtor from time to time. The decree holder is entitled to receive fruits of the decree and the judgment debtor cannot be permitted to raise frivolous objections with a view to delay the execution and create obstructions in the way of the Court in executing the decree. 9. In exercise of the extraordinary powers conferred under Article 227 of the Constitution of India, in my opinion, it is not a fit case for causing interference. 10. The petition is devoid of merit and hence stands dismissed. 11. Counsel appearing for the petitioner seeks extension of the interim order for further period. However, for the reasons recorded above, I am not inclined to grant extension in favour of the petitioner-judgment debtor who has lost legal battles before all the forums. The oral request made by the counsel for the petitioner stands rejected. ( R. M. BORDE, J.)