1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.5715 OF 2007. Mahada Narayanrao Mali ... Petitioner. Versus Gangadhar @ Bhaurao Ganeshrao and another ... Respondents. ... Mr.B.D.Suryawanshi, advocate holding for Mr.D.N.Suryawanshi, advocate for the petitioner. Mr.S.S.Jadhavar, advocate for the Respondent No. 1. ... CORAM : V.R.KINGAONKAR,J. Date : 02.07.2009. PER COURT 1. Rule. Rule made returnable forthwith and heard finally. 2. By this petition, the petitioners challenge order dated 28.6.2007, rendered by the learned Civil Judge (J.D.), Ashti in R.D.No. 2 9/2002, for attachment of the properties of the judgment debtors and to put them in Civil prison on account of recovery of the costs and other charges. The learned Civil Judge allowed the application and directed the Decree Holder/Respondent to take steps for attachment of properties of the J.Ds. and for their detention in Civil prison. 3. Heard learned counsel. 4. On perusal of the copy of R.D. (execution application), it is explicit that the execution of the decree was sought only against the J.D.No.3 - Rambhau Mali. No prayer was made to execute the decree as against other J.Ds. A suit bearing (RCS No.2/1979) was filed by the Respondent/D.H. for perpetual injunction. The suit came to be decreed. The Respondent alleged that on 4.4.2002 the J.Ds. Nos.2(I) to 3 destructed "water canal" and thereby committed breach of the injunction order. The learned Civil Judge came to the conclusion that J.D.No.3, who is present petitioner No.2, disobeyed the 3 decree and was liable to be dealt with in accordance with Order XXI Rule 31 of the C.P.C. Still, however, in the final order the learned Civil Judge directed attachment of the properties of all the J.Ds. and taking of steps for their imprisonment. Thus, it is amply clear that such drastic step was taken against the L.Rs. of original defendant No.2/J.D. No.2 i.e present petitioner Nos.1-A to 1-D though there was no prayer in the Regular Darkhast to proceed against them. The affidavit filed by the decree holder D.H./respondent purports to show that the water canal was ploughed and destroyed by the legal heirs of the J.D.No.1 on 4.4.2002. It is vaguely stated in the affidavit of the Respondent that J.D.No.3 - Rambhau use to instigate them for destruction of the water canal. It is pertinent to note that the learned Civil Judge did not properly appreciate the affidavit of the Respondent/J.D. The execution of injunction decree can not be lightly allowed in the manner sought unless there is sufficient proof about the breach of the injunction order by the particular judgment debtor. The averments in the affidavits 4 appear to be only against the legal heir of J.D.No.2, whereas the execution application reveals that the execution was sought against the J.D.No.3 - Rambhau. It is difficult to reconcile the prayer in the Darkhast and the affidavit of the Respondent. The direction of the learned Civil Judge are, therefore, quite inconsistent with the material placed on record. The impugned order suffers from perversity in view of the inconsistencies mentioned above. Consequently, interference is called for in this petition and that liberty may be granted to the Respondent/ J.D. to file fresh application. 5. In the result, the petition is allowed. The impugned order is quashed. Rule made absolute. Liberty to file afresh Execution Application. (V.R.KINGAONKAR,J.) asp/office/wp571507