1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.539 OF 2008 WITH CIVIL APPLICATION NO.2231 OF 2005 Shivling Gangadhar Dandane )..Appellant Vs. Govind Laxman Rajendra & Ors. )..Respondents ---- Mr. R.D.Soni i/by M/s.Ram & Co. for the appellant. Mr. S.M.Gorwadkar for the respondent no.1 ---- Coram : R.S.MOHITE,J Date : 3rd March, 2010 PC SECOND APPEAL NO.539 OF 2008 1 Advocate for the appellant states that he will not press this appeal if it is made clear that he can raise all the questions pertaining to his rights and title in the execution proceedings. On perusing the impugned judgment, I find that there is a finding in favour of the appellant that the dismissal of his earlier application under Order-21 Rule-97 does not apply as a resjudicata. Though this is contested by the other side, I find that the earlier application under Order-21 Rule-97 was decided on a technical ground. In the circumstances, appeal is allowed to be withdrawn. It is however, made clear that the appellant will have a right to agitate such questions as can be raised under Order-21 Rule-97, 101 & 103 in the execution proceedings and if such questions are raised, they will be decided in accordance with law on the basis of evidence led by parties before the executing court and without being influenced by any of the observations made by the Civil 2 Court in the suit or in the appeal proceedings from which the present Second Appeal arises. It is also directed that any application under Order-21 Rule-97 will be decided expeditiously and within a period of six months from the date of its making. CIVIL APPLICATION NO.2231 OF 2005 1 As the Second Appeal is dismissed as withdrawn, Civil Application does not survive and stands disposed off accordingly. (R.S.MOHITE,J) 3