1 WP 9257/2009 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9257 OF 2009 Kantilal Sheshmal Jain .. Petitioner V/s Mangilal Gyanmal Jain & Ors. .. Respondents Mr. V.S. Gokhale for the petitioner. Mr. P.V. Dube for respondent no.1. Mr. Rajesh S. Datar for respondent no.2. CORAM : D.G. KARNIK, J. DATE : 6TH JULY 2011 P.C. : 1. Rule, returnable forthwith. 2. Mr. Dube waives service for respondent no.1. Mr. Datar waives service for respondent no.2. 3. By consent, heard forthwith. 4. In my view, the case at hand is squarely covered by a decision of this Court in Shripati Ganpati Jadhav v. Chandrakant Ganpati Jadhav, Writ Petition No. 8056 of 2010 decided on 23rd November 2010 (Coram: D.G. Karnik, J.). In this view of the 2 WP 9257/2009 matter, only the necessary facts are stated in brief. 5. The petitioner is a decree holder in whose favour decree for possession of the property was passed. He put the decree in execution. In the execution proceedings, the present respondent no.2 appeared suo motu contending that he was in possession of the property in his own right and therefore the decree cannot be executed against him. The petitioner filed his reply and say opposing the application. After hearing the parties, the Court passed an order directing the petitioner – decree holder to take appropriate steps in the execution proceedings. That order is impugned in the present petition. 6. In the case of Brahmdeo Chaudhary v . Rishikesh Prasad Jaiswal, (1997) 3 SCC 694, the Apex Court has held that Order 21 Rule 99 of the Code of Civil Procedure applies not only to a case where a person other than judgment debtor is dispossessed of an immovable property by the holder of a decree for possession of that property, but he can approach the Court even before he is actually dispossessed. Following the aforesaid decision of the Supreme Court, this Court in hripati Ganpati Jadhav v. Chandrakant Ganpati Jadhav (supra) has held that where a person in possession of a property appears suo motu 3 WP 9257/2009 and makes an application that he cannot be dispossessed, such application be treated as resistance or obstruction to the execution of the decree within the meaning of Order 21 Rule 97 of the Code of Civil Procedure and any reply filed by the decree holder opposing the application can be treated as an application for removal of obstruction. In the light of this decision, the Trial Court ought to have treated the application made by respondent no.2 to be an obstruction and the reply filed by the petitioner to the said application as an application for removal of the obstruction. 7. For these reasons, the impugned order is set aside and the executing Court is directed to consider the reply filed by the petitioner to the application of respondent no.2 as an application for removal of the obstruction and decide it in accordance with law. 8. Rule is made absolute to the extent indicated above. (D.G. KARNIK, J.)