1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4734 OF 2009 Hanumanta Timma Pujari (since deceased through L.Rs.) & Ors. ...Petitioners vs. Narhari Balku Kawade (since deceased through L.Rs.) & Ors. ...Respondents Mr.Atul Vanarse for the petitioners Mr.Mandar Limaye for respondent nos.3 to 5 & 9. Ms Sangita Pawar i/b Mr.P.J.Pawar for respondent no.2 Mr.Ashok Tajane for respondent no.7D Mr.Nitin Patil i/b Mr.U.P.Warunjikar for respondent no.10 CORAM :A.S.OKA,J. DATE : OCTOBER 15, 2009 P.C. 1 Heard the learned counsel for the petitioners. He seeks time to bring on record the legal representatives of the first respondent who is reported to be dead. The question of granting time will arise provided there is some merit in the petition. Therefore, I have heard the learned counsel for the petitioners. 2 The petitioners are the original defendants and the Judgment Debtors. The petitioners have suffered a decree for possession way back in the year 1984. The execution application was filed by the original plaintiff. There was an order passed by the executing court on the basis of the application made by the plaintiff-decree holder at Exhibit 37 directing demolition of the structures on the suit property. A prayer was also made for grant of police protection. The said application at Exh.37 was allowed by the 2 executing court on 17 th October 2008. An application was made by Judgment Debtor No.16 for setting aside the said order below application at Exhibit-37. An order was passed by the trial court on 2 nd January 2009 rejecting the said application. The said Judgment Debtor No.16 filed a writ petition in this court being Writ Petition no.1148 of 2009. The said petition was disposed by order dated 4 th March 2009. This court directed the executing court to decide the objection of the petitioner in the said petition. This court observed that the order of possession warrant below Exhibit-37 dated 17 th October 2008 shall remain in abeyance. This court directed that the said order passed below Exhibit-37 on 17 th October 2008 shall be implemented only after the said objection of the said petitioner was decided. Subsequently, some of the petitioners filed an application at Exhibit-66 for review of the order passed below at Exhibit-37 and for setting aside the order. The said application at Exhibit-66 was disposed of by the executing court by order dated 25 th March 2009. In paragraph 5 of the of the said order, the executing court has observed thus : 5 On perusal of application it appears that the said application has been preferred on behalf of the Judgment Debtors. It ought to have been filed by the objectors. As application is preferred by J.Ds. They to adduce evidence that objector have their houses on suit property along with 21 J.Ds. The said 21 J.Ds have no right to prefer any objection for themselves as decree is against them and sufficient opportunity has been granted to them to file their reply if any. Hence, instant application has to be treated as application preferred on behalf of the objectors. (Emphasis added) 3 In paragraph 7 of the said order, the trial court has made further observation which reads thus : 7 As the objectors have been granted an opportunity to adduce evidence as above, if the objectors succeed in adducing necessary evidence the order passed below exhibit-37 dated 17 th October 2008 shall be subject to necessary modification. The order passed below exhibit-37 against the 21 decree holders as mentioned in decree remains as it is. (Emphasis added) 3 In the operative order, there was a direction issued to the objectors to furnish documents/information as set out therein such as documents of title, ration card etc. Subsequently on an application at Exhibit-74 filed by the Decree Holder, by order dated 29 th April 2009, the executing court directed that the execution will proceed. This is the order which is challenged in this writ petition under Article 227 of the Constitution of India. 4 The learned counsel for the petitioners invited my attention to the order dated 25 th march 2009 passed below application at Exhibit-66. He submitted that on plain reading of the said order, the application was made by the petitioner at Exhibit-66 was allowed and therefore, the order below Exhibit-37 dated 17 th October 2008 stands set aside. He submitted that in view of the said order passed below Exhibit-66, without hearing the petitioners objection, the trial court could not have passed the impugned order. He submitted that on legal advice, the petitioners have not challenged the order dated 25 th March 2009 in as much as according to the petitioners their application at Exhibit-66 has been allowed by the said order. 4 5 After having considered the submissions, I find that there is no merit in the petition. It is true that there was an application made at Exhibit-66 for review of the order passed below application Exhibit-37. In paragraph 5 of the order passed on the said application, the trial court has made it very clear that the petitioners (21 Judgment Debtors) have no right to prefer any objection and the application at Exhibit-66 will be considered as an application preferred on behalf of the third party objectors. Paragraph 7 of the order records that the order below Exhibit 37 against the 21 Judgment Debtors remains as it is. Thus, the application made at Exhibit-66 stands rejected in so far as Judgment Debtors are concerned and the application will be treated as the one filed by third party objectors. The order dated 25 th March 2009 makes it very clear in so far as 21 Judgment Debtors are concerned, the order passed below Exhibit-37 dated 17 th October 2008 stands. By the said order police protection was granted for implementation of order of demolition of the structures on the suit property. The petitioners have not challenged the order dated 25gh March 2008 passed below application at Exhibit-66 by which prayer of the petitioner for review of order dated 17 th October 2008 passed below Exhibit-37 stands rejected. The petitioners have not challenged the order dated 17 th October 2008 by filing any other proceedings. 6 In the circumstances, by passing the impugned order, the executing court was justified in directing that the execution will proceed as per the order passed below Exhibit-37 on 17 th October 2008. 7 Therefore, there is absolutely no merit in the 5 petition which is filed by some of the Judgment Debtors. It is not in dispute that the decree passed against them has become final. No case for interference is made out. 8 At this stage, the learned counsel for the petitioners submits that before passing the impugned order dated 29 th April 2009, the petitioners were not heard. There is no merit in the said submission. The petitioners are the Judgment Debtors. Their application at Exhibit-66 for setting aside the order dated 17t October 2008 was not granted by the executing court and the said order was not challenged by them. The decree has become final. Therefore, there was no occasion for the executing court to hear the petitioners who are Judgment Debtors and who are bound by the decree. The impugned order is merely a consequential order recording that the earlier order dated 17 th October 2008 was operating and therefore, the execution proceeding shall be proceeded with. The petition is rejected. 9 At this stage, the learned counsel for the petitioners prays for continuation of ad-interim relief granted on 8 th May 2009. The said prayer is opposed by the learned counsel for the respondent nos.3 to 5. Considering the fact that the ad-interim relief is operating from 8 th May 2009, the same will continue to operate for a period of six weeks from today. JUDGE