IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 389 OF 2008 Dara Kaikushroo Moriobadi Irani and Ors. .....Petitioner Versus Moti Dinshaw Irani and Ors. .....Respondents Mr.R.M.Pethe i/by. Shri. R.G. Ketkar, adv. For petitioner/applicant. Mr.J.S.Kini i/by. Suresh Dubey for respondent nos.1 and 2. Respondents no.3 and 4 and their advocate absent. Coram : Smt. R.P. SondurBaldota, J. Dated: 14 th July, 2008. P.C. : . Rule made returnable forthwith. Mr.Kini waives service of notice of final hearing. The application is taken up immediately for final hearing. Heard both the counsels. 1. This civil revision application arises out of the judgment and decree dated 30th July, 2004 passed by the IIIrd Additional Judge, Small Causes Court, Pune in Suit No.691 of 2000 and judgment and decree dated 15th February,2006 passed by the Learned District Judge in Civil Appeal No.932 of 2004. The petitioners are the heirs and legal representatives of the original defendant no.4. Respondents no.1 and 2 are the original plaintiffs and respondents no. 3 to 5 are original defendants no.1 to 3. 2. One Dinshaw K. Irani was the owner of House No.839, Dastur Maher Road, Pune-1. Respondents no.1 and 2 are the widow and son of Dinshaw. Original defendant no.4 Dara was the brother of Dinshaw. According to respondent nos.1 and 2, Dinshaw died intestate on 5th July, 1992, whereas, according to the petitioners Dinshaw had left a will, bequeathing the property to Dara, and also appointing him as the sole executor of the will. This issue as regards execution of will is subjudice in the suit for partition filed in the court of Civil Judge Senior Divison, Pune filed by respondent nos.1 and 2 being Sp.Civil Suit No.134 of 2004. Respondents no.3 and 4 were the tenants in respect of first and second floor of the house property. Respondents no.1 and 2 filed a suit for possession, inter-alia on the ground of acquisition of alternate premises, non-user of the premises and sub-letting by respondents no.3 and 4. The suit as filed, originally was only against respondent nos.1 to 3. Later on, the plaint came to be amended to join deceased Dara, and to insert paragraph-2A to the plaint. At paragraph-2A of the plaint, respondents no.1 and 2 after narrating brief history as regards the disputes between themselves and deceased Dara, alleged as follows :- “. The Plaintiffs therefore, submit that the defendant no.4 with the intention to harass the plaintiffs colluded with defendant nos.1 and 2 and illegally entered in the suit premises and took illegal possession. The plaintiffs submit that they do not admit the right, title and interest of defendant no.4 in the suit property or any part thereof. The plaintiffs further submit that the defendant nos.1 and 2 have illegally handed over possession of the suit premises during the pendency of the suit. The plaintiffs, therefore, also entitled to recover possession of the suit premises from the defendant no.4 also. “ 3. The evidence led by respondents no.1 and 2 in the suit against Dara read in the same lines as the above averments in the plaint. However, no issue whatsoever had been raised as regards the allegation against Dara and his defence thereto. Perusal of the judgment and decree dated 30th July, 2004 shows that the same is only against respondents no.1 to 3. Respondents no.1 to 3 have been directed to hand over vacant possession of the suit premises to respondents no.1 and 2 within a period of one month from the date of the decree. 4. Then, Dara preferred an appeal to the District Court for protection of his possession of the premises apprehending that by taking advantage of the judgment and decree passed in the suit, he may be evicted therefrom on the ground that, he has entered into the premises through respondents no.3 and 4, i.e. original defendants no.1 and 2. It was also contended by Dara in the appeal proceedings and now by the petitioners in the instant application, that the trial court ought to have waited, until the issue as regards execution of the will was decided in the partition suit filed by respondents no.1 and 2. Dara expired during the pendency of the appeal and the applicants had been brought on record as his heirs and legal representatives in the appeal memo. 5. Mr.Pethe, learned counsel for the appellant, however submits before this court that the petitioners will be content, if their possession of the premises is protected by the court. Mr. Kini, learned counsel for the respondents, submits that the petitioners cannot seek any such protection, by filing the instant application. According to him, it is open for the applicants to obstruct execution of the decree by respondent nos.1 and 2, if they so desire and thereafter establish their right to occupy the suit premises in such obstructionist proceedings. I am afraid, it is not possible to accept the contention raised, because the applicants through deceased, Dara were very much before the court at the time of hearing of the suit. Therefore, they cannot be termed as obstructionists in the execution proceedings. Since there is no decree passed against Dara, there is no question of execution of any decree, either directly or indirectly against the applicants. With these observations, the revision application is disposed off. (Smt.R.P.SondurBaldota, J)