1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.235 OF 2010 IN WRIT PETITION NO.6124 OF 2010 Sitaram s/o Bhau Patare, Since deceased, through L.Rs. 1) Nanasaheb s/o Sitaram Patare, 2) Balasaheb s/o Sitaram Patare, 3) Smt. Parvatibai w/o Sitaram Patare, 4) Mrs. Sushilabai Nanasaheb Patare, All R/o- Village Taklibhan, Tq-Shrirampur, Dist-Ahmednagar. ...APPELLANTS. VERSUS Eknath s/o Punja Patare, since deceased, through L.Rs. 1) Smt. Leelabai Eknath Patare, 2) Sau. Shantabai Eknath Patare, 3) Appasaheb s/o Eknath Patare, 4) Vasant s/o Eknath Patare, All R/o- Village Taklibhan, Tq-Shrirampur, Dist-Ahmednagar. ...RESPONDENTS. 2 ... Shri.Rahul R. Karpe Advocate for Appellants. ... CORAM: NARESH H. PATIL AND K.K. TATED, JJ. DATE : 14TH SEPTEMBER, 2010. PER COURT : 1. Heard learned counsel for the Appellants. The learned counsel submits that once execution petition was dismissed in default filed by the Respondent Decree Holder, second execution Petition is barred. The counsel submits that as the Respondent did not seek restoration of the earlier proceedings, the earlier order of dismissal operates as res judicata. The counsel placed reliance on following two Reported Judgments, which were delivered by the learned Single Judge of the Bombay High Court: 3 i) Om Prakash Navani and another vs. Herebert Joseph Pereira and others, 2003 (6) Bom. C.R. Page 170, ii) Yashodabai Ganesh Naik Gaunekar (since deceased through L.R.) vs. Gopi Mukund Naik, 2003 (1) Bom. C.R. Page 346. 2. We have perused the Order passed by the learned Single Judge, which is assailed in this Letters Patent Appeal. The learned Single Judge has observed that, in the case of injunction decree, the cause of action may be available as and when there is obstruction or threat to the right of the decree holder. In the facts of the case the trial Court has passed Judgment and Decree restraining defendants 1 to 5 from interfering and obstructing into the peaceful possession of the plaintiff over the suit property and of his right of taking water of 4 annas share from the disputed well by his own electric motor. 4 3. In the facts of the case, we find that whenever the obstruction is created by the Judgment Debtor, the Decree Holder would be entitled to file an application for execution. In the facts of the case, the view adopted by the learned Single Judge is not erroneous or perverse. It will be useful to refer to the observations in the case of Shivashankar Prasad Shah and others vs. Baikunth Nath Singh and others, 1969 (1) Supreme Court Cases Page 718. In Para 6 of the Judgment cited supra, the Apex Court observed that: "(6) The Courts in India have generally taken the view that an execution petition which has been dismissed for the default of the decree-holder though by the time that petition came to be dismissed, the judgment- debtor had resisted the execution on one or more grounds, does not bar the 5 further execution of the decree in pursuance of fresh execution petition filed in accordance with law - see Lakshmibai Anant Kondkar v. Rayji Bhikaji Kondkar. Even the dismissal for default of objections raised under Section 47, Civil Procedure Code does not operate as res judicata when the same objections are raised again in the course of the execution- see Bahir Das Pal and Another vs. Girish Chandra Pal, Bhagwat Prasad Sah vs. Radha Kishun Sah and others, Jethmal and others v. Mst. Sakina, Bishwannath Kundu v. Smt. Subala Dassi. We do not think that the decision in Ramnarain v. Basudero on which the learned counsel for the appellant placed great deal of reliance is correctly decided. Hence we agree with the High Court that the plea of res judicata advanced by the appellant is unsustainable." 6 4. There is no merit in the Letters Patent Appeal, the same is accordingly dismissed. [K.K. TATED, J.] [NARESH H. PATIL, J.] asb/SEPT10/lpa235.10