1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION No. 5334/2009. ( Mohammad Ismael Mohammad Yakub ..versus... Abdul Razzak Mohammad Yakub ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : FEBRUARY 11, 2010. Heard finally by consent of Shri A.S. Chandurkar, learned counsel for petitioner and Shri C.A. Babrekar, learned counsel for respondent. The Executing court has rejected application at Exh.125 filed by the petitioner/judgment debtor, complaining of excessive execution. He points out that he has been denied user of room which is otherwise legally in his possession while executing the decree in question. Shri Chandurkar, learned counsel has pointed out that the suit was for eviction of petitioner from room ad- measuring 10 x 10 feet and in his evidence respondent / plaintiff has pointed out that out of total 4 rooms he was in possession of two rooms and one room was in possession of petitioner / defendant. The respondent / plaintiff had obtained possession of remaining one room in execution from 2 one Tahzeebbi and petitioner / defendant took that room also in his possession. Thus according to Shri Chandurkar, learned counsel suit was only for recovery of possession of that room on which earlier Tahzeebbi had possession. In this situation, while executing that decree the respondent/ plaintiff has blocked the entrance of petitioner to other room in his possession and has deprived him of its user. For this purpose an application for restoration of possession and also for appointment of Commissioner to ascertain the position was made and that has been rejected by the Executing Court. According to Shri Chandurkar, learned counsel all these facts which are relevant are not looked into. Shri Babrekar, learned counsel for respondent on the other hand argues that the suit was for recovery of possession of only one room which was in possession of petitioner / defendant and there is no question of any other room in the matter. He contends that unnecessary confusion is sought to be created by pointing house Nos. 555/1 and 555/2. He also wants to rely upon some execution which has taken place in 1987 and also the earlier order of the Executing Court in this respect. The earlier execution in the year 1987 or its relevance is not pointed out to the Executing Court and is not gone into by it. The impugned order also does not make reference to any other order passed by the Executing Court in the matter. The facts pointed out to this Court prima facie show that out of total 4 rooms the petitioner/defendant was in possession of two rooms and suit was to recover possession of only one out of those two rooms from him. All these facts therefore needs to be looked into by the Executing Court and 3 thereafter orders on Exh.125 can be passed. As I find that the facts appearing on record before this Court are not looked into by the Executing Court, the impugned order dated 19.06.2009 is quashed and set aside. The application at Exh.125 is restored back to the file of the Executing Court with liberty to the parties to place appropriate material before the Executing Court, and after such material is placed before it the Executing Court to decide the application at Exh.125 afresh and in accordance with the law. As the matter is old, proceeding in the Execution are made time bound and the Executing Court shall decide the same as early as possible and in any case by 30.04.2010. Writ Petition is thus disposed of with above observations. Rule accordingly. No cost. JUDGE. Rgd.