1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.468 OF 2009 Namdeo Dnyaneshwar Kand ...Petitioner vs. Sau Kisabai Mukund Katke & Ors. ...Respondents Mr.Rajdeep Khadapkar for the petitioner None for the respondent. CORAM :A.S.OKA,J. DATE : SEPTEMBER 7, 2009 P.C. 1 Heard the learned counsel for the petitioner. The first respondent is the original plaintiff-decree holder. At the instance of the first respondent-plaintiff-decree holder, a warrant of possession in execution of the decree was issued by the trial court. An objection/obstruction in writing was raised by the present petitioner by filing an application on 26 th October 2007. It appears that the trial court on 14 th July 2008 passed an order in the execution application recording oral request of the decree holder for removal of the obstruction. On the same date, the trial court framed issues for adjudication and permitted the evidence to be adduced by the parties. 2 A pursis was filed by the petitioner on 26 th August 2008 pointing out that as the first respondent-decree 2 holder has failed to prefer an application under Rule 97 of Order XXI of the Code of Civil Procedure,1908, the execution application be dismissed. The objection raised by filing pursis has been overruled by the learned trial Judge by passing the order dated 25 th November 2008 which is impugned in this writ petition. 3 The learned counsel for the petitioner submitted that the warrant of possession was issued and when the baillif visited the property, the obstruction was raised. He invited my attention to the report of the baillif dated 10 th September 2007. He submitted that the application ought to have been made by the first respondent-decree holder under Rule 97 of Order XXI of the said Code within a period of 30 days from 10 th September 2007. He submitted that the first obstruction was noted by the baillif on 10 h September 2007 and therefore, application ought to have been filed by the first respondent-decree holder within a period of 30 days. He submitted that in view of section 5 of the Limitation Act,1963, the said period of limitation cannot be extended. 3 I have considered the submissions. Admittedly, the petitioner submitted an application before the executing court dated 26 th October 2007 recording his obstruction of the petitioner to the decree for possession. In view 3 of decision of the Apex Court in case of Brahmadeo Chaudhary vs.Rishikesh Prasad Jaiswal and another (AIR 1997 SC 856), the trial court was under an obligation to hold an adjudication as contemplated by Rule 97 of Order XXI of the said Code. Accordingly, on 14 th July 2008, the executing court passed an order framing issues on the basis of the obstruction raised by the petitioner and permitting the parties to lead evidence. In view of the mandate of law laid down by the Apex Court in case of Brahmadeo (supra), the trial court had no option but to adjudicate on the basis of the obstruction filed by the petitioner on 26 th October 2007. By filing a pursis in August 2008, the petitioner contended that on the failure of the first respondent to comply with Rule 97 of Order XXI of the said Code, the execution application be dismissed. 4 Adjudication was ordered by the executing court on 14 th July 2008 on the application made by the petitioner. In view of the decision of the Apex Court, the rights of the petitioner were required to be decided and adjudicated upon in execution application and not in a separate suit. The objection regarding bar of limitation is a hypertechnical objection in as much as till the decree is satisfied the first respondent could have repeatedly applied for and obtained warrant of possession and every obstruction to the every such warrant would 4 give an opportunity to the decree holder to apply for removing obstruction. Hence, it is not possible to interfere with the impugned order dated 25 th November 2008 by which the executing court has directed that the adjudication be made on the basis of the obstruction raised by the petitioner in writing. 5 No case is made out for exercising extraordinary jurisdiction of this court under Article 227 of the Constitution of India. Writ Petition is accordingly rejected. JUDGE