wp5797.08 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 5797 OF 2008 Shankarrao s/o Dagduji Kharatmal @ Kalyankar & others .. PETITIONERS VERSUS Narayanrao s/o Dagduji Kharatmal @ Kalyankar & others .. RESPONDENTS Mr. Milind Patil, advocate for the petitioners. Respondent nos.1 and 2 served. Mr. D.M. Shinde, advocate for respondent no.3. ===== CORAM : R.M. BORDE, J. DATE : 27 th JANUARY, 2011 PER COURT : 1 Petitioners – decree holders are raising exception to the order passed by the Executing Court on 25-6-2008 below exh. 41 in Regular Darkhast no. 1/1998. 2 It is the contention of the petitioner that in Regular Civil Suit no. 13/1993, decree in respect of delivery of vacant possession of the Municipal House no. 1-15-160, part of CTS No. 1574, Sheet no. 21, situate at Dhorpura, wp5797.08 2 Jalna has been passed in their favour by the Jt. Civil Judge, Jr.Dn., Jalna on 4-1-1994. Respondent nos. 1 and 2 herein were impleaded as defendants in the said suit. Said decree passed by the trial court attained finality as the first appeal as well as second appeal presented against said decree were turned down. Petitioners presented Regular Darkhast n o. 1/1998 seeking execution of the decree before the Executing Court. 3 Respondent no. 3 herein who is sister of the petitioners, claims her entitlement in the property and as such has presented an application at exh. 37 objecting execution of the decree. Apart from the suit property, respondent no. 3 herein is also claiming her entitlement in the other properties owned and possessed by her father. On perusal of the prayers in the application it appears that respondent no. 3 is claiming partition in respect of the property which is subject matter of execution petition as well as other properties allegedly owned by father of respondent no. 3. Application presented by respondent no. 3 was objected by the petitioners herein – decree holders, contending that objection application, in the form presented by respondent no. 3, is not entertainable as the Executing Court cannot pass any order directing partition of the ancestral property. The application is also opposed on the ground that respondent no. 3 cannot be wp5797.08 3 permitted to expand scope of enquiry in execution application and also cannot be permitted to seek relief in respect of other family properties. An application was tendered by the petitioners herein requesting the court to reject the application tendered by respondent no. 3. However, the Executing Court has turned down the request in view of the order passed on 25-6-2008. 4 I have perused the application as well as the impugned order passed by the Executing Court. Learned counsel for respondent no. 3 states that his client intends to restrict the scope of the petition only so far as it relates to the property which is subject matter of execution in Regular Darkhast no. 1/1998 and would not press the claim in respect of other properties raised in the application. It would be open for respondent no. 3 to make suitable application to the Executing Court in that regard. If such application is tendered, the Executing Court may restrict the enquiry in respect of objection tendered by respondent no. 3 so far as it relates to property in dispute which is subject matter of execution application. So far as objections raised by the petitioners herein relating to entertainability of the application on the ground of nature of relief sought in the application as well as other objections those are raised or those may be raised before the wp5797.08 4 Executing Court are concerned, those are specifically kept open for consideration. Executing Court shall pass orders in the matter without being influenced by the order passed below exh. 37 and 41 on 4-3-2008 and 25-6-2008 respectively. With these observations, petition stands disposed of. Executing Court shall dispose of objection application as expeditiously as possible preferably within 8 weeks from today. ( R. M. BORDE ) JUDGE dyb