((-1-)) ms t IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2662 OF 2008 Dattatraya Purshottam Kumbhakarna Petitioners and another versus Prajyot Balkrishna Likhite & ors. Respondents Shri S.V.Palsuledesai for petitioners. Shri R.B.Paranjape for respondents. CORAM : SMT.R.P.SONDURBALDOTA, J. DATE : 11th June 2008 PC : 1. Heard learned counsel for parties. Rule. Rule made returnable forthwith. By consent, petition is disposed of finally. 2. One Balkrishna Shankar Likhite - father of the respondents to the petition, filed Regular Civil Suit No.593 of 1986 against one Laxmibai L.N.Sayanna and another for recovery of possession of premises admeasuring 12’x10’ situated at Likhite Chawl, Nehru Road, Near Bhaji Market, Dombivali (East). The petitioners were joined as party defendants to ((-2-)) the suit in the year 1997. They filed written statement and took up a stand that they have nothing to do with the suit premises. The suit thereafter went for trial. The parties to the suit, except for the petitioners, led evidence and the suit came to be decreed by the judgement and decree dated 22nd February 1999 directing the defendants to hand over possession of premises admeasuring 12x10 feet in Likhite Chawl to the original plaintiffs. 3. The heirs of the original defendant no.1 Laxmibai L.N.Sayanna preferred Civil Appeal No.41 of 1999 to challenge the decree. However, the same came to be withdrawn on 19th August 2003. The petitioners before the Court did not prefer any appeal against the decree. 4. Since the possession was not handed over as per the decree, execution proceedings being Regular Darkhast No.98 of 2003 were filed. In that, the decree holder filed an application stating that warrant of possession be issued for structure admeasuring 12’x6’. This alteration in the size of the suit structure became necessary as a portion of the suit structure i.e. a portion admeasuring 12’x4’ ((-3-)) had been demolished in the year 1992 at the time of road widening. The petitioners now for the first time in execution proceedings seek to contend that the demolition that took place in the year 1992, was of the entire structure of the original plaintiffs. They contend that the structure which is standing at site today, is a structure admeasuring 10’x6’ which was put up by them adjoining to the original structure after its demolition. With this contention they filed an application in Darkhast proceedings requesting for appointment of Commissioner to inspect the suit premises and to file his report. The application was opposed by the original plaintiffs. The learned Trial Judge after hearing both the sides and perusing the record rejected the application observing that the report of the Court Bailiff shows that the suit premises is in existence and it is under lock. Therefore, at this stage, it is not open for the Court to take up the measurement of the suit premises. The learned Judge also observed that the Executing Court cannot go behind the decree. 5. It was never contended nor established during the trial that the entire suit premises ((-4-)) was demolished way back in the year 1992 and that thereafter the petitioners had constructed their own structure independent of the suit structure. This means that at the time of passing of the decree the petitioners were not disputing existence of the suit structure. It is not now open for the petitioners to go behind the decree and contend that when the decree was passed the suit structure was not in existance or that the structure standing at site was put up by them. It is patent that this stand is now taken up falsely only to defeat the decree. In the circumstances, the petition is dismissed. (SMT.R.P.SONDURBALDOTA, J.)