1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 11393 OF 2010 1. Shridhar s/o. Shahaji Gadhekar, Age 65 yrs., Occu. Agril., R/o. Gadhe-Jalgaon, Tq. & Dist. Aurangabad. 2. Laxman s/o. Saluba Gadhekar, Age 56 yrs., Occu. Agril., R/o. As above. 3. Ramesh @ Ramrao s/o. Saluba Gadhekar, Age 50 yrs., Occu. Agril., R/o. As above. 4. Kishan s/o. Saluba Gadhekar, Age 53 yrs., Occu. Agril., R/o. As above. ....Petitioners. Versus 1. Govindsingh s/o. Jagannathsingh Naik, Age 58 yrs., Occu. Agril., R/o. Gadhe-Jalgaon, Tq. & Dist. Aurangabad. At present Behind Mata Mandir, N-9, CIDCO, Aurangbad. 2. Sudhakar s/o. Jagannathsingh Naik, Deceased through his L.Rs. 2-A. Pramila w/o. Sudhakar Naik, Age 48 yrs., Occu. Household, R/o. Ganeshnagar, Sangamner, Rq. Sangamner, Dist. Ahmednagar. 2-B. Rupali w/o. Vinod Tharewal, Age 24 yrs., Occu. Household, R/o. Bhokardan, Dist. Jalna. 2-C. Rahul s/o. Sudhakar Naik, Age 27 yrs., Occu. Business, R/o. Karmad, Tq. & Dist. Aurangbad. 3. Satish s/o. Jagannathsingh Naik, 2 Age 52 yrs., Occu. Business, R/o. Karmad, Tq. & Dist. Aurangabad. ....Respondents. Mr. S.S. Choudhari, Advocate for petitioner. Mr. A.D. Kasliwal, Advocate for respondent Nos. 1, 2A to 2C and 3. CORAM : A.A.SAYED, J. DATED : 16th December, 2010. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith and heard finally by consent. 2. The order dated 7.12.2010 passed by the Civil Judge, Junior Division, Aurangabad is subjected to challenge in this petition. By that order the application of the petitioner No. 3, who is judgment debtor No. 5 in the execution proceedings, seeking stay under Order 21, Rule 26 and 29 of the Civil Procedure Code, to execution of the decree, came to be rejected. 3. It is an admitted position that the decree in R.C.S.No. 7/1973 came to be passed on 28.3.2001. Thereafter, first appeal came to be filed which was dismissed. Second appeal was also filed in this Court which was also dismissed. The matter was carried to the Apex Court and the Special Leave Petition (SLP) of the petitioners was also dismissed. 3 4. In the meantime, execution proceedings were initiated by filing Regular Darkhast No. 368/2001. The decree under execution was transferred under section 54 of Civil Procedure Code from the Civil Judge, Junior Division, Aurangabad to Collector at Aurangabad. The Collector directed the Tahsildar to hand over the possession of the premises in question to the respondents. The petitioners had filed objection petition before the Tahsildar which was also rejected sometime on 21st January 2010. Notices were issued by the Naib Tahsildar and the date for handing over the possession was fixed on 4th February 2010. The Appeal filed by the petitioner before the S.D.O., Aurangabad against the rejection of objections by Tahsildar was rejected on 24/10/2010. The Writ Petition Nos. 8715/2009 and 8720/2009 which was filed by the petitioners in this Court was also rejected by order dated 26.8.2010. 5. The petitioners also filed two suits being R.C.S. No. 114/2008 and R.C.S.No. 776/2009. The petitioners also filed an application in Regular Darkhast No. 368/2001 for stay of the proceedings till the disposal of R.C.S.No. 194/2008. The basis on which the execution is now questioned and stay sought is that the petitioners have discovered a sale deed which was not referred to in the earlier suit of 1973. It is, therefore, contended that the decree was obtained fraudulently and that the decree is null and void. It is stated that petitioners did not have knowledge of the execution of the sale deed and therefore, that defence was not set up in the earlier 4 suit of 1973. 6. I have considered the rival contentions of the parties. At the outset, it is noted that the suit is filed in the year 1973 and till date the respondents have not been able to enjoy the fruits of decree which was passed some time on 28th of March 2001. My attention has been drawn to the order dated 26.8.2010 passed in Writ Petition Nos. 8720/2009 and 8715/2009 wherein the learned Single Judge of this Court has observed in para 3 as follows :- "In this view of the matter, it appears that all the attempts are being made by the petitioners which are only for protracting litigation and cause delay in delivery of possession." This order came to be passed in the aforesaid Writ Petitions wherein the petitioners had objected to the execution proceedings initiated by the respondents who are decree holders in the Regular Darkhast Appln. No. 368/2001. 7. The learned counsel for the petitioners has relied upon the provisions of Order 21, Rule 29, wherein he has pointed out that the Court would have power to stay the execution pending the suit being R.C.S.No. 194 of 2008, which has been filed by the petitioners which suit is between the petitioners who are the judgment debtors and the respondents who are the decree holders. It is to be noted that the said provision is only a discretionary power which may be exercised by the 5 Court in a given case. In the instant case, merely because suit has been filed by the petitioners, would not mean that the execution of the decree should be stayed. In my opinion, in view of provisions of section 11 of the Civil Procedure Code, the principles of constructive res-judicata as set out in the said section would come into play. Merely because it is alleged that the petitioners did not have knowledge of the execution of the sale deed and therefore, the defence in the earlier proceedings could not be set up and that a fresh suit has been filed, would not entitle them to have the execution stayed. Looking to the protracted litigation which is going on between the parties since 1973 it can only be said that this is yet another attempt by the petitioners to obstruct the execution of the decree having failed in several attempts at that. 8. In the circumstances, I do not find any reason to interfere in the impugned order. The petition is dismissed. Rule is discharged. The petitioners shall pay the costs quantified at Rs. 5,000/- (Rupees five thousand) to the respondents within four weeks from today. 9. Copy of the order duly authenticated by the Shirastedar/PA be provided to the respondents. [ A. A. SAYED, J. ] ssc/wp11293.10