1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 4589 OF 2010 (Sau. Seema Rajesh Puri vs. Vilas B. Thakre & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. SEPTEMBER 29, 2010. Heard finally with consent of Shri Paliwal, learned counsel for the petitioner and Shri Joshi, learned counsel for respondents No. 2 to 4. The petitioner – plaintiff has obtained a decree against Respondent No. 1, who is father of Respondents No. 2 to 4. He has executed that decree through Court and has been placed in possession thereafter. He filed a Civil Suit contending that Respondents No. 2 to 4 were attempting to dispossess him. The trial Court granted him temporary injunction and protected his possession. Respondents No. 2 to 4 filed Misc. Civil Appeal and in appeal, by impugned judgment dated 18.08.2010, District Judge – 1, Washim has set aside that temporary injunction. Shri Paliwal, learned counsel contends that decree obtained against Respondent No. 1 has become final and that decree or its execution has not been assailed by Respondents No. 2 to 4 at any point of time. Shri Joshi, learned counsel states that 2 Respondents No. 2 to 4 being daughters, are coparceners/ co-owners along with him. The decree was obtained without impleading them as parties and execution is also behind their back. As co-owners they are/ were jointly in possession with Respondent No. 1 and, therefore, they cannot be dispossessed in execution of decree. He invited attention to observations of the trial Court to show that the appellate Court has found that said judgment and decree is not binding upon Respondents No. 2 to 4. He further states that Respondents No. 2 to 4 have filed a counter claim in suit filed by the petitioner and it is not necessary for them to challenge either the impugned judgment and decree or its execution. The same is void and not binding upon them. The petitioner has obtained a decree against Respondent No. 1 in relation to suit property. That decree was attempted to be challenged by said respondents in Regular Civil Appeal and as that appeal was barred by limitation, application for condonation of delay was filed. The delay was not condoned. The facts clearly show that a Competent Court has passed a decree against Respondent No. 1 in relation to suit property and as per Court records, that decree has also been executed and the petitioner has been placed in possession. The respondents – daughters have not challenged that decree or its execution. Their contention is that the judgment and decree obtained 3 behind their back is not binding upon them. They have not alleged any collusion between Respondent No. 1 and the petitioner. The trial Court has, therefore, correctly appreciated the position and has protected the possession of the petitioner during the pendency of the suit. The reasons given by the appellate Court are totally irrelevant and show non application of mind. The records of execution cannot be disbelieved at this stage without appropriate challenge. Discussion in paras 13 and 15 of the judgment by the Appellate Court is not sufficient to discredit execution records. 1 Hectare and 21 R. land only is relevant for adjudication. The judgment dated 18.08.2010 delivered by District Judge – 1, Washim, is therefore quashed and set aside and the order of trial Court passed below Exh. 5 on 24.06.2010 is hereby restored. However, the petitioner – plaintiff is restrained from creating any third party interest and from parting with the possession of the suit property or changing its nature during the pendency of the Regular Civil Suit No. 17 of 2010. The trial Court shall attempt to decide the proceedings in Regular Civil Suit No. 17 of 2010 as early as possible. Writ Petition is disposed of. Rule is made absolute accordingly. However, there shall be no order as to costs. JUDGE *GS.