wp3339.11.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.3339/2011 Smt.Gita Bhagwantrao Shekokar and others -vs- Dwarkadas Kashiram Agrawal and others ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri G. R. Sadar, counsel for the petitioners. Shri Sonbhadre, counsel for the respondent No.1. CORAM : SMT. VASANTI A. NAIK, J. DATE : 18.10.2011. Heard. The petitioner is the original defendant. A suit was filed by the respondent-landlord for eviction of the petitioner-tenant from the suit property. The suit was decreed and the judgment passed by the trial Court attained finality. In the execution proceedings an objection was raised by the petitioner-judgment debtor that the respondent is not the owner of the suit property and the Government is the owner of the same. It was the case of the judgment debtor that the respondent had obtained the judgment and decree in the proceedings for eviction by practicing fraud on the Court. The objection raised by the petitioner was, however, overruled by the executing Court by an order dated 22/06/2011. wp3339.11.odt 2/3 On hearing the learned counsel for the parties, it appears that the executing Court was justified in dismissing the objection raised by the petitioner. The petitioners had admitted the boundaries of the suit property in the written statement filed in the suit filed by the respondent for eviction. The executing Court rightly held that the objection ought to have been raised by the petitioner in the civil suit. In case, the petitioner was of the view that the decree had been obtained by the respondent by playing fraud on the Court, according to the executing Court, the petitioner ought to have filed a separate suit and sought a declaration to that effect. However, since there was no declaration of the Court that the decree was obtained by the respondent by fraud and since the decree passed in favour of the respondent had attained finality, the objection was rightly overruled by the executing Court. This is a case where the petitioner-tenant is trying to protract the execution proceedings and to ensure that the decree passed in favour of the respondent is not executed. The judgments reported in (1996) 3 Supreme Court Cases 301 and (1973) 2 Supreme Court Cases 263 relied on by the counsel for the petitioner cannot be made applicable to the facts of this case. Since the execution proceedings are filed in the year 2008 and the objection raised by the petitioner is frivolous, the request made on behalf of the petitioner for staying the execution proceedings for a period of six weeks is rejected. wp3339.11.odt 3/3 In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE KHUNTE