[1] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4562 OF 2008 Mr. Mansoor Ibrahim Shaikh .... Petitioner Vs. Mr. Nivrutti Kondaji Pandey .... Respondent Ms Jai Mhaskar for the Petitioner. Shri Pratap Patil for the Respondent. CORAM: CORAM: CORAM: ANOOP V. MOHTA, J. DATED: DATED: DATED: DECEMBER 2, 2008 P.C: P.C: P.C: 1. The petitioner/decree-holder has challenged the order dated 2-4-2008 whereby the executing Court while allowing the application directed the respondent/judgment-debtor to demolish the bathroom and the toilet which is the subject-matter of dispute in the present case. 2. The petitioner as per the sale deed and the decree is entitled for the land admeasuring 650 sq.ft. with open space. The detail description of the property is given in para 1 of the plaint and the same is maintained in the appeal and, according to the petitioner, also in the draft sale deed. On the application Exhibit-28, as filed by the respondent, the Court has directed and observed that there is no word [2] mentioned i.e., bathroom and toilet together and therefore that was deleted from the draft sale deed and that order remains unchallenged by the decree-holder. 3. The petitioner decree-holder thereafter filed draft sale deed recording the deletion of the words "bathroom and toilet" as per the order of the Court. Taking note of all these, the executing Court permitted the judgment-debtor to demolish the said bathroom. The executing Court is bound by the decree which includes the description of the property, as provided in the decree. The contention of the petitioner is that the said bathroom and toilet fall within the ambit of the said description though not specifically mentioned and the fact remains that the land along with the described area is part and parcel of the property in question for all the purposes. There is nothing on record mentioned in the order to the effect whether the bathroom and toilet are out of the area of the property in question, as described in the plaint. Even though the words "bathroom and toilet" are missing, still the question is whether that falls within the prescribed area in question. If it falls within the prescribed area, then there is no question of demolition of the said bathroom and toilet. But if it is beyond the prescribed area and/or it is outside the prescribed area of the property described by the petitioner, then the Court may pass [3] appropriate order. Another facet is while executing the decree and/or settling the draft sale deed, whether the executing Court in such a disputed position of facts can direct the parties to demolish the structure as per the draft sale deed? Before passing order of demolition of such nature, the Court must record reasonings for the same. 4. However, if it is only question of demolition and in any way it won’t give any benefit to the parties, basically the judgment-debtor. This facet can be settled and compromised by the parties also when the decree has attained its finality for all the purposes and it is pending for execution/settling of the sale deed in question. 5. In view of this, the impugned order dated 2-4-2008 is quashed and set aside. The executing Court to decide the issue afresh in view of the observations already made above preferably within six weeks. The petition is accordingly allowed. (ANOOP V. MOHTA, J.) sjs/D8wp4562.8 sjs/D8wp4562.8 sjs/D8wp4562.8