1 fa1041-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1041 OF 2011 Govind Rajaram Khanolkar .. Appellant V/s. Shree Tirthankar & Company .. Respondent .... Mr. R. A. Thorat i/b. Mr. Bipin Joshi for the appellant. Mr. Sameer Bhalekar for the respondent. .... CORAM : A.S.OKA, J. DATE : JUNE 24, 2011. P.C.: Heard the learned counsel appearing for the appellant. The Appeal is filed by an obstructionist challenging the order passed by the Executing Court by which obstruction of the appellant to the execution of the decree for possession was ordered to be removed. 2. The learned counsel appearing for the appellant submitted that the application made by the respondent-decree holder under Rule 97 of Order XXI of the Code of Civil Procedure, 1908 was barred by limitation. He pointed out that the Court Bailiff noted the obstruction on 5th January, 2009. He pointed out that Miscellaneous Application No.5 of 2009 was filed by the respondent-decree holder before the Executing Court on 2 fa1041-11 13th January, 2009. He submitted that thought the prayer in the said application was for directing Sheriff of Bombay to execute writ of possession by removing the person found in premises, the order dated 14th January, 2009 passed by the Executing Court shows that the Executing Court did not treat this application as the one under Rule 97 of Order XXI of the said Code. He submitted that the respondent-decree holder did not challenge the said order and filed a fresh application being Miscellaneous Application No.46 of 2009 for removal of the obstruction of the appellant. He pointed out that the said application was filed on 24th February, 2009. His submission is that the said application was barred by limitation in as much as the same ought to have been filed within a period of thirty days from 5th January, 2009. He submitted that the very fact that the respondent made the said application shows that the respondent accepted the order dated 14th January, 2009. He submitted that though issue of limitation was raised, the Executing Court did not frame any issue on the bar of limitation. He submitted that it was the duty of the Court to frame the issue as the application for removal of obstruction was required to be treat as a suit. It is submitted that as issue was not framed, the appellant had no opportunity of adducing evidence on the issue of limitation. His submission is that the impugned order is illegal. 3. I have given careful consideration to the submissions. It must be noted that it is not the case of the appellant that he was not granted an 3 fa1041-11 opportunity by the Executing Court to adduce evidence on the application filed by the respondent. It is his case that as issue of limitation was not framed, he was prevented from leading evidence on the issue of limitation. He has placed reliance of Judgment and order dated 21st March, 2011 passed by this Court in Writ Petition No.1249 of 2011. 4. I have given careful consideration to the submissions. The executing Court has granted an opportunity to the appellant to adduce evidence. The evidence was adduced by the appellant by filling an affidavit in lieu of examination-in-chief. Nothing prevented the appellant from leading any evidence on the aspect of limitation. Apart from that, looking to the contention which is raised by the appellant, no evidence was necessary to decide the issue of limitation. Therefore, there is no prejudice to the appellant on the ground that issue of limitation was not framed. Suffice to say that the issue of limitation has been dealt with by the learned trial Judge while passing the impugned Judgment and order and a detailed finding has been recorded thereon for rejecting the contention of bar of limitation. 5. It is not in dispute that obstruction of the appellant was recorded for the first time on 5th January, 2009. Miscellaneous Application No.5 of 2009 was preferred by the respondent on 13th January, 2009 as noted by the learned trial Judge in paragraph No.10 of the impugned Judgment. 4 fa1041-11 There is no dispute that the said application was filed within a period of thirty days from the date on which the obstruction was noted for the first time. The prayer in the said application was to the effect that possession of the suit property be delivered by removing all persons found in possession. There are averments made in the said application about the obstruction of the appellant. In paragraph No.4 of the application it is contended that necessary direction be given to the appellant to remove his obstruction. Only the requirement of Sub Rule 1 of Rule 97 of Order XXI of the said Code is that the decree holder should apply to the executing Court complaining of such resistance or obstruction. The Misc. Application No.5 of 2009 does record the complaint of the respondent about the said obstruction by the appellant and, therefore, there is a prayer for dispossessing the persons found in possession. Moreover the title of the impugned Judgment and order shows that the same has been passed on Miscellaneous Application No.5 of 2009 in Miscellaneous Application No.46 of 2009 in Execution Application No.667 of 2008. Thus, the impugned order has been passed on the said application No.5 which was filed within limitation. 6. The learned counsel appearing for the appellant relied upon the order dated 14th January, 2009, which reads thus: “13.01.09 DT. 14.01.09 CORAM : HIS HONOUR JUDGE SHRI V. K. SHEWALE 5 fa1041-11 SU 2414/06 Taken on board by preceipe. Mrs. P. V. Abhyankar Advocate fr Plff. Advocate for decree holder prayed for possession warrant under Order 21 Rule 25 of CPC with police and to execute the same as obstruction to the execution of previous possession. SU 2414/08 Warrant has been caused by the judgment Contd... dated and also by one obstructionist Mr. Govind Rajaram Khonalkar who claimed to have purchased suit land and being in possession thereof the report of Bailiff Sheriff marked Exhibit-B sails in the same consonance. Consequently Decree Holder should have resort to Order 21 Rule 97 for removal of obstruction of the obstructionist, then only execution can only proceed otherwise decree holder to take steps thereto. Adjd. To 20th February, 2009.” 7. The said order does not show that Miscellaneous Application No.5 of 2009 was before the Court on that date. All that the order records is that the present appellant has raised an obstruction and the decree holder will have to take recourse to Rule 97 of Order XXI of the said Code. There is not even a reference to Miscellaneous Application No.5 of 2009. The cause title of Miscellaneous Application No.46 of 2009 shows that the said application has been filed in Miscellaneous Application No.5 of 2009. In fact, the cause title of the impugned order shows that the same has been passed on Miscellaneous Application No.5 of 2009 which was filed within limitation. There is no specific order produced on record to show that Miscellaneous Application No.5 of 2009 was either rejected or disposed 6 fa1041-11 of prior to the date of passing of the impugned order. Only order relied upon by the appellant is the aforesaid order dated 14th January, 2009, which is not passed on Miscellaneous Application No.5 of 2009 and which makes no reference to the said application. Thus, adjudication has been made on Miscellaneous Application No.5 of 2009 which was admittedly filed within the stipulated period of limitation. The said application is in conformity of Rule 97 of Order XXI of the said Code. There is no merit in the Appeal preferred by the obstructionist and the same is dismissed. 8. The learned counsel appearing for the appellant seeks protection for a period of 12 weeks from today. This prayer is opposed by the learned counsel appearing for the respondent. 9. Execution shall not proceed against the appellant for a period of 12 weeks from today subject to condition that even the appellant will maintain status-quo in respect of the suit property. (A.S.OKA, J.)