1 wp-9413.10 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9413 OF 2010 Arvind Manilal Mistry & Others. .. Petitioners Vs Amum Builders & Anr. .. Respondents -- Shri Sanjay Jain and Mr. H. V. Pradhan i/by M/s. Zahir & Co. for the Petitioners. -- CORAM : A.S.OKA, J. DATE : 9TH DECEMBER, 2010 P.C: . Heard learned counsel appearing for the Petitioners. The Petitioners are the obstructionists in execution of a decree for possession. The 1st Respondent is the Plaintiff. Pending disposal of the proceedings under Rule 97 of Order XXI of the Code of Civil Procedure, 1908, the Petitioners have made an application before the Executing Court and raised a contention that the decree passed in the suit is a nullity inasmuch as the Plaintiff-firm was not registered under the provisions of the Indian Partnership Act, 1932. The second contention raised by the Petitioners was that even obstructionist notice was not maintainable as the same was taken out by the unregistered partnership firm. 2. The Trial Court rejected the application made by the 2 wp-9413.10 Petitioners. However, the Trial Court has not decided finally the contentions raised by the Petitioners on merits. The Trial Court observed that the contentions can be considered at an appropriate stage of hearing of the obstructionist notice. The order of the Trial Court has been confirmed in revision application preferred by the Petitioners. 3. Learned counsel appearing for the Petitioners submitted that the issues raised go to the root of the matter and if the contentions of the Petitioners are accepted, there will be no occasion to go ahead with the final hearing of the obstructionists notice. He submitted that as the Petitioners have been directed to pay mesne profits, the original Plaintiff is trying to delay the proceedings of the obstructionists notice. 4. I have carefully considered the submissions. Issues raised by the Petitioners have not been finally decided by the Executing Court. On the contrary, the said issues are kept open to be decided at the appropriate stage. In short, the prayer of the Petitioners was to decide preliminary issues in the obstructionists notice. The said prayer has been turned down by the Executing Court and the Revisional Court has confirmed the decision of the Executing Court. The obstructionists notice is of the year 2007. Therefore, there is no reason to interfere with the discretionary orders passed by the Courts below. The fact that the Petitioners are required to pay mesne profits is no ground to interfere with the discretionary orders passed by the Courts below. 3 wp-9413.10 5. The Petition is rejected. However, the hearing of the obstructionists notice is expedited. It is obvious that the contentions raised by the Petitioners regarding non-registration of the Plaintiff’s firm are expressly kept open. (A.S.OKA, J)