1 WP 10670/09 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10670 OF 2009 Bhau Anna Raskar & Ors. .. Petitioners V/s Ananta Eknathsa Malji & Ors. .. Respondents Mr. U.R. Mankapure for the petitioners. Mr. M.L. Patil for the respondents. CORAM : D.G. KARNIK, J. DATE : 17TH AUGUST 2010 P.C. : 1. Heard. 2. By this petition, the petitioners challenge the order dated 2 December 2009 passed by the learned Civil Judge, Junior Division, Kadegaon, (hereinafter referred to as “the executing court”) rejecting the petitioners’ application for dismissal of the execution proceedings and the further order dated 3 December 2009 directing execution of the sale deed and issuance of a possession warrant. 3. In a suit filed by the respondent no.1 against the respondent no.2 (original owner), a decree for specific performance was passed directing the respondent no.2 to 2 WP 10670/09 execute the sale deed of the suit property in favour of the respondent no.1. The suit property appears to be a part of larger property belonging to the respondent no.2. During the pendency of the suit, without obtaining any leave of the Court, the respondent no.2 appears to have transferred different parts of his larger property to different persons and the petitioners claim to be the purchasers of different portions of the larger property. Since the petitioners appear to be in possession of a part of the suit property for which a decree for specific performance has been passed, the respondent no.1 filed an execution petition against the respondent no.2 by joining the present petitioners as party to the execution proceedings. 4. In the execution petition, the petitioners had previously contended that the description of the suit property given in the suit was vague and, therefore, the decree was inexecutable. Thereupon, the respondent no.1 made an application for appointment of a Court Commissioner for identifying the suit property by reference to the description in the decree and then to execute the sale deed. Initially, the executing court held that the decree was inexecutable as the property was not identifiable by the description in the decree. However, in Writ Petition No. 3024 of 1993, this Court (R.M.S. Khandeparkar, J.) set aside the 3 WP 10670/09 order and directed appointment of a Court Commissioner to identify the property as per the description in the decree and then to execute the sale deed. Accordingly, Court Commissioner was appointed to identify the property as per the description. Thereafter the petitioners made a fresh application contending that the Darkhast be dismissed as the property was not identifiable. That objection was overruled and the Court directed the Nazir of the Court to execute the sale deed in pursuance of the report of the Court Commissioner. Those orders are impugned in this petition. 5. Learned counsel for the petitioners firstly submitted that the property was not identifiable and the report of the Court Commissioner was erroneous. The decree was not executable as the description of the property was erroneous. The very contention was raised earlier and has been rejected by this Court by its order dated 5 December 2005 passed in Writ Petition No. 3024 of 1993. The contention cannot be allowed to be reagitated again before this Court. 6. Counsel for the petitioners then contended that the decree was only for specific performance and there was no order for handing over possession of the suit property. Consequently, the 4 WP 10670/09 executing court erred in directing that the possession of the suit property be handed over. Possession follows title. Once the property is conveyed, along with the conveyance the purchaser is entitled to the possession unless the original agreement or the conveyance provides otherwise. Consequently the contention that the possession could not have been ordered to be delivered cannot be accepted. 7. Counsel for the petitioners contended that the petitioners were not the parties to the original suit and, therefore, there could be no order of execution of the sale deed and delivery of possession against them. The petitioners have purchased the part of the larger property during the pendency of the suit without obtaining leave of the Court. They could have purchased the property which was not the subject matter of the suit. While doing so if they have purchased the suit property or any part thereof, without obtaining the permission of the Court, the transaction would be hit by section 52 of the Transfer of Property Act. Since they have not obtained the permission, they cannot claim any right in the suit property. 8. There is no merit in the writ petition which is hereby rejected. 5 WP 10670/09 9. Request of the learned counsel for the petitioners to stay the operation of the order is rejected. (D.G. KARNIK, J.)