1 wp 67-2011.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 67 OF 2011 Shri Mahesh Prafulla Bagade ..Petitioner vs. Mr.Chandrakant Janardhan Modak & Anr. ..Respondents Mr.N.P. Deshpande for the Petitioner. CORAM : B.R. GAVAI, J DATED : FEBRUARY 9, 2011. P.C. : 1 By way of present petition, the petitioner challenges Order dated 29th September, 2010 vide which the application filed by the present petitioner for framing the additional issues came to be rejected. 2 In a suit filed by the respondent no.1- plaintiff, the decree for eviction has been passed. The said decree has been affirmed upto the Apex Court. When the decree is put for execution, 2 wp 67-2011.sxw an objection was raised by the present petitioner that he was also a necessary party inasmuch as only his grandmother and uncles were brought on record as legal heirs of deceased original defendant. It is submitted that the present petitioner also, who was a grandson of the deceased defendant, ought to have been brought on record as a legal heir. In this background, an application came to be filed for framing the issues to the effect :- 1)Whether plaintiff proves that third party was not necessary party to the original suit? 2)Whether plaintiff proves that third party is having no concern with suit property? 3)Whether plaintiff proves that third party or his father gets no tenancy right in suit property as per the provisions of Rent Act? 4)Does plaintiff proves that stamp executed between Mohan Vitthal Bagade and original defendant is bogus and illegal one? 5)Does plaintiff proves that Decree 3 wp 67-2011.sxw in regular Civil Suit No.495/93 is legal & valid decree? 3 The learned trial court while rejecting the application has held that the Executing Court cannot go beyond the decree and reopen the issue. It has further been held that the issues which are sought to be framed were casting negative burden on the plaintiff in whose favour the decree has already been passed and as such, rejected the application. 4 No perversity could be noticed in the order passed by the learned trial court in the extra ordinary jurisdiction under Article 227 of the Constitution of India. 5 Hence, Writ Petition is rejected. (B.R. GAVAI, J)