1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 2769 OF 2010. Shri Gajanan Narayan Joshi -: VERSUS :- Vishwanath Ramchandra Ozalwar and others. 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. DATED : SEPTEMBER 30, 2010. Heard finally by consent of Shri P.Y. Deshpande, learned Counsel for petitioner and Ms. R.D. Raskar, learned Counsel for respondent nos. 1[a] to 1[h]. Shri Deshpande, learned Counsel points out that in a suit i.e. Regular Civil Suit No. 599/1980, for partition and separate possession, preliminary decree came to be passed on 07.09.1990 and on the strength of that decree, direct execution has been filed vide R.D.No. 177/1990. He has also read out the prayers made in the execution proceedings to demonstrate to this Court that possession is also sought therein. According to him, as there is no final 2 decree in suit as yet, the execution is premature. The execution proceedings therefore needed to be dismissed and the trial Court could have proceeded further in suit itself to pass final decree. To show to this Court the difference in nature of proceedings in Civil Suit and in execution, reliance is being placed upon the judgment reported at 2009 [6] All MR 503 (Shub Karan Babuna @ Shub Karan Prasad .vrs. Sita Saran Bubna and others). Ms. Raskar, learned Counsel for respondents has contended that in execution, an application was filed by the present petitioner for its dismissal by raising objection. The Court has found that the execution on preliminary decree is not maintainable, but then in facts before it, it has accepted the execution petition as filed by the respondent, as a request to proceed further to proceed further to pass final order in Civil Suit. According to her, no prejudice is caused to the present petitioner, as the Trial Court is duty bound to pass appropriate final decree after considering the material before it. The respondents shall, after such final decree is passed would file appropriate execution proceedings in accordance with the law. It is apparent that the executing court has found that the execution petition as filed and registered vide R.D. 3 No. 177/1990 is not maintainable. But, then as the preliminary decree is already passed and final decree is still not passed in Regular Civil Suit No. 599/1980, it has proceeded further to pass a final decree in the said Regular Civil Suit. The Trial Court shall after considering the material and hearing the parties before it, pass appropriate final decree in Regular Civil Suit No. 599/1980. The respondents / plaintiff may thereafter file fresh proceedings for execution of that final decree in accordance with law. As I find that no prejudice is caused to the petitioner in any way by the impugned order passed, no case is made out warranting interference in the present matter in writ jurisdiction. Petition is therefore, disposed of with no order as to costs. JUDGE Rgd.