:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 357 OF 2008 Trade Centre Developers & Builders Pvt Ltd ...Petitioners Versus Ambika Petrol Depot, through its Prop.Shri Ramanlal P. Shah and Ors. ....Respondents ====== Mr.K.Y. Mandlik, Adv. for the petitioners. Mr.S.R.Page Adv. for respondent no.1. Mr.M.D.Sisodia i/by.Rustomji Jinwala for respondent nos.2 to 4. CORAM: S.C.DHARMADHIKARI, J. DATED: 31ST JANUARY, 2008. P.C. P.C. P.C. : : : 1. This is a Writ petition preferred by the original decree holders who are aggrieved by an order below Exhibit-27 in Darkhast no. 25 of 2007. 2. It is undisputed before me that the petitioner-decree holder filed Suit No. 67 of 1998 for possession against the respondent nos.2 to 4. That :2: :2: :2: suit was decreed on 9.6.2005. Appeal from this decree has also been dismissed. A Civil Revision Application carried to this court ended in dismissal on 5.4.2007. The matter was carried to Supreme court and even the Supreme court refused to interfere with the judgment and decree. It appears that thereafter an Undertaking was filed by the authorised signatory/officer of the Hindustan Petroleum Corporation Ltd (Respondent nos.2 to 4) undertaking to vacate and hand over peaceful possession to the petitioner/decree holders. 3. It is in such circumstances, the application for withdrawal of the proceedings was filed. However, prior thereto Execution petition was filed, decree was put in execution, warrant for possession was issued, but, the First Respondent obstructed claiming independent right, title and interest in the property. 4. The question before the Executing Court was whether the application for withdrawal of the execution proceedings should have been allowed. The decree holder having got possession from the original judgment debtor, what is the effect of the same, whether it is a :3: :3: :3: mere paper possession or it is an end to the rights of the First Respondent in the subject property or not, are matters which need not be the concern of the Executing Court. Ultimately, the obstruction was raised to the execution of the decree. Because, there was a decree put in execution and that was obstructed the First Respondent filed an application. Now, the execution itself doesn’t survive and therefore pendency of the obstruction should not have detained and influenced the Executing court in deciding the subject application. 5. Mr.Page, appearing for the Obstructionist, does not dispute that the execution proceedings could have been withdrawn by the petitioner but he apprehends that his rights may be adversely affected. That apprehension has no basis, inasmuch as, neither the Executing Court nor this court has concluded the issue of right, title and interest, if any, of the Obstructionist-First Respondent. That is an independent matter and for the said right to be asserted, the First Respondent is at liberty to institute appropriate proceedings. Even the petitioner can do so. However, in the peculiar facts :4: :4: :4: of this case, application for withdrawal could have been allowed. For the reasons aforestated, the order under challenge cannot be sustained and it is quashed and set aside. The application for withdrawal of the subject Darkhast is allowed with the clarification as above. sd/- *******