1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.6236 OF 2009 Tanubai Dattu Wagh ...Petitioner vs. Vitthal Pandurang Gaikwad & Ors. ...Respondents Mr.S.S.Shah for the petitioner Mr.Ajay Joshi for respondent nos.1, 2 and 4. CORAM :A.S.OKA,J. DATE : JANUARY 12, 2010 P.C. 1 Heard the learned counsel for the Petitioner and the learned counsel for the respondents. The petitioner is the original plaintiff in whose favour a decree for perpetual injunction has been passed against the predecessor of the respondents. On 22 nd April 2008, in the application for execution of the decree filed by the petitioner, the Judgment Debtor was ordered to be detained in the civil prison. An application at Exh.25 for stay of the said order was made by the respondents. Another application was made at Exh.37 by the respondents praying for an appointment of the Taluka Inspector of Land Records as a Court Commissioner for carrying out survey and demarcation of the land allegedly in possession of the respondents. In the said application the respondents contended that there is no question of the respondents constructing cattle shed in the land bearing Gat No.256. It was contended that the decree does not relate to entire Gat No.256 but it relates to an area of 23 Ares out of Gat No.256. By the impugned order, the Taluka Inspector of Land Records has been 2 appointed as the Court Commissioner. 2 The learned counsel for the petitioner submitted that there was no occasion for the Executing Court to appoint the Court Commissioner. He submitted that the order dated 22 nd April 2008 passed by the Executing Court has not been challenged by the respondents. The learned counsel for the respondents submitted that by application at Exh.37, the respondents had raised objections to the execution of the decree and for the purpose of holding an enquiry, the Executing Court has appointed the Court Commissioner. He submitted that no interference is called for. 3 I have considered the submissions. Perusal of the application at Exh.37 shows that an objection has been raised by the respondents that construction of the cattle shed is not on the property subject matter of the decree as the decree does not relate to entire Gat No.256. In essence and in substance, the respondents have raised objections to the execution of the decree which will have to be adjudicated under section 47 of the Code of Civil Procedure,1908. The learned trial Judge has mechanically passed an order appointing the Court Commissioner. Therefore, the impugned order deserves to be quashed and set aside. However, adjudication will have to be made on the objections raised by the respondents and while adjudicating upon the said objections, it is for the trial Court to pass an appropriate order including an order directing the local investigation. 4 Hence, I pass the following order : i) Impugned Judgment and order is quashed and set aside. 3 ii)The application at Exh.37 is restored. iii)Subject to what is observed above, the Executing Court will deal with the objections raised by the respondents in accordance with law. iv)Writ Petition is partly allowed in above terms. There will be no order as to costs. v) Adjudication shall be made as expeditiously as possible and preferably within a period of twelve weeks from the day on which an authenticated copy of this order is produced. JUDGE