( 1 ) wp8131.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 8131 OF 2010 Chhagan Mangilal Bafna & Ors. .. Petitioners Versus The Nandurbar Municipal Council, Nandurbar .. Respondents and ors. Shri R.R. Mantri, Advocate for the petitioners. Shri A.B. Girase, Advocate for respondent No.1. Shri Vivek Dhage, Advocate for respondent No.2. CORAM : B.P. DHARMADHIKARI, J. DATED : 29.03.2011 P.C. :- 1. Rule. Rule made returnable forthwith. Heard finally by consent. 2. Heard Adv. Shri Mantri for the petitioners, Adv. Shri Girase for respondent No.1-Municipal Council and Adv. Shri Dhage for respondent No.2-University. ( 2 ) wp8131.10 3. Adv. Shri Mantri contents that the decree obtained on 28.07.2000 by the petitioners against respondent No.1- Municipal Council, in Special Civil Suit No. 86 of 1995 for restoration of possession is being defeated by the Executing Court in as much as it has framed issues on 19.07.2010 and plans to enquire into the same. He contents that such course of action is not envisaged by Order 21 Rule 100 of the C.P.C. He relies upon Bombay amendment thereto to urge that subsequent allottee like respondent No.2–University has no right to raise objection in that execution. 4. The petitioners, therefore, filed application in pending execution vide Exh.30, contending that said objection raised by the University at Exh.16 was misconceived and prayed for its rejection under Order 7 Rule 11 of C.P.C. The Executing Court has rejected that application. He contents that said judgment and decree is maintained up to this Court and Second Appeal has been dismissed. 5. Adv. Shri Girase appearing for respondent No.1 – Municipal Council contends that the land in dispute is left ( 3 ) wp8131.10 open for public utility in the Development Plan and was in possession of the Municipal Council. The judgment and decree of the Trial Court holding the Municipal Council an encroacher has been questioned before this Court in the Second Appeal. The Second Appeal has been dismissed as abated because of failure to bring on record legal heirs and necessary corrective measures are already taken by the Municipal Council. He, therefore, states that the proceedings are not disposed of on merit so far. He further points out that total land is about 34000 sq. ft. and out of portion admeasuring 3500 sq. ft. has been allotted to the University for construction of library for students in 2004 and accordingly respondent No.2-University has constructed library on it. 6. Learned Counsel appearing for respondent No.2 University points out that the objection by the University in executing Court is only in respect of 3500 sq. ft. in its possession constituting only 1/10th of total land, about which the decree is passed. The University, therefore, has no objection if possession of remaining land is restored to the ( 4 ) wp8131.10 petitioner. He further argues that resolution was passed by the Municipal Council on 27.01.2004 and land came to be allotted to respondent No.2. Respondent No.2 has been inducted as a tenant vide agreement dated 08.01.2007 and after that respondent No.2 has completed construction. The activity of construction was going on for about one year and nobody obstructed that activity. The university has paid public money and the building is being used by students for their education. According to the Counsel the ends of justice would be met by asking the petitioner to recover the compensation from respondent No.1-Municipal Council if its construction cannot be demolished or the University cannot be asked to handover possession of the library to the petitioner. 7. Perusal of the provisions of Order 21 Rule 100 show that said provision deals with order to be passed on an application complaining of dispossession. The rule contemplates the orders which can be passed upon determination of question referred to in Rule 101. Thus, at the end of such determination the Executing Court can make an ( 5 ) wp8131.10 order allowing the application and directing that the applicant be put in possession of the property or dismiss his application. The provisions of Rule 101 show that all questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application not by a separate suit. The provisions of Rule 21 Rule 97 show that when holder of a decree for possession of immovable property is resisted or obstructed by any person in obtaining possession of the property, he may make application to the Court complaining of such resistance or obstruction. When any such application is made under sub- rule (1), the Executing Court has to proceed to adjudicate upon that application in accordance with the provisions. Rule 98 then contemplates order to be passed after such adjudication. Provisions of sub-rule (2) of Rule 98 contemplate directions to be issued when the Executing Court is satisfied that resistance or obstruction was occasioned without any just cause by the judgment debtor or by some ( 6 ) wp8131.10 other persons at his instigation or on his behalf or by any transferee, where such transfer was made during pendency of the suit or execution proceedings. 8. Looking at Bombay amendment in this background it reveals that it speaks of the transfer by the judgment debtor after institution of suit and of an order on complaint by transferee from such judgment debtor. 9. It is apparent that attention of the Executing Court has not been invited to all these provisions. The question prima facie involved is whether application as moved by present respondent No.2 can be treated as one under Rule 97 subject to sub-rule (2) of Rule 98 or the one to which provision of Bombay amendment to Rule 100 will apply. 10. Respondent No.2 has no objection if the petitioner takes possession of the land except the land allotted to it by respondent No.1-Municipal Council. The Municipal Council has filed Second appeal and it is therefore free to obtain proper orders in this respect in that Second Appeal. Subject ( 7 ) wp8131.10 to such orders, the Executing Court, therefore, can restore possession of the petitioner insofar as balance land is concerned. The objection raised by respondent No.2- University is only in relation to allotted 3500 sq. ft. land in which it is inducted as tenant on 08.01.2007, as per its agreement with the Municipal Council. 11. In view of this position the order passed below Exh.16 on 14.08.2009 in Special Darkhast No. 23 of 2008 by the Civil Judge, Senior Division, Nandurbar, common orders passed below Exhs. 21 and 28 in that Darkhast on 19.07.2010 and also orders passed below Exh.30 in Special Darkhast No. 23 of 2008 on 19.07.2009 are quashed and set aside. The applications at Exh. 16, 21, 28 and 30 are restored for taking fresh decision on it in accordance with law as early as possible and in any case within two months from the date of communication of this order. 12. Only to avoid confusion it is made clear that the Executing Court has to consider these applications to the extent of the grievances made by respondent No.1-University ( 8 ) wp8131.10 and area claimed by it. 12. Rule made absolute accordingly. No order as to costs. [B.P. DHARMADHIKARI, J.] snk/2011/MAR11/wp8131.10