(1) WP. 1756.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1756 OF 2010 Sopan S/o Narayanrao Deshmukh .. Petitioner VERSUS Ramesh S/o Digambarrao Lohagaonkar .. Respondent Mr. Ajit B. Madke, Advocate for the Petitioner Mr. P.N. Kalani, Advocate for the respondent ... CORAM : V.R. KINGAONKAR, J. DATED : 1ST JULY, 2010 ORAL ORDER:- 1] Heard learned counsel. The petitioner is judgment debtor against whom suit for declaration and recovery of possession was decreed. The trial Court had framed issue pertaining to tenancy. The contention of the petitioner was that he is tenant of the suit land. The issue was subsequently deleted during the trial. The deletion of the issue was on the basis of the application filed by the plaintiff and that Advocate for the petitioner has given endorsement that he did not want to address the application for making reference of the issue. Contention of the petitioner was that he had not instructed the Advocate to do so, and therefore, such (2) WP. 1756.2010 issue could not have been deleted and ought to have been referred. He allege that his Advocate played mischief in collusion with the respondent. It is pertinent to note that the suit was decreed after due trial and the petitioner had preferred appeal against the judgment and decree of the trial Court. The petitioner has not filed copy of the appeal memo in order to demonstrate that such issue was raised again and that the same was considered by the first appellate Court. The decree became final since Second Appeal (St.) no.6539 of 2009 was dismissed because of non-condonation of delay. The petitioner thereafter filed application for reconsideration of the issue and making reference of the tenancy issue to the Tribunal. He contended that possession may not be delivered by executing the decree till the issue is decided. The executing Court dismissed the application (Ex.41) to stay the execution Petition. 2] Upon hearing learned counsel and on going through the relevant record, it is amply clear that the petitioner’s counsel had abandoned the issue during the course of trial. The allegations about collusion between his counsel and the plaintiff is not required to be gone into when it was not objected before the first appellate Court. The decree for possession has attained finality. The petitioner being judgment debtor, cannot resist execution of the decree. His explanation appears to be lame and un- (3) WP. 1756.2010 acceptable. The impugned order does not suffer from perversity or arbitrariness. Petition dismissed. Sd/- [V.R. KINGAONKAR, J.] arp