1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4607 OF 2008 Gautam Sukdeo Wagh ...Petitioner vs. Kusum Sona Wagh & Ors. ...Respondents Ms Shubhada Khot for the petitioner Mr.S.M.Gorwadkar for respondent no.1 CORAM :A.S.OKA,J. DATE : SEPTEMBER 7, 2009 P.C. 1 Heard the learned counsel for the petitioner and the learned counsel for the respondent. Considering the narrow controversy involved in the petition, on 30th June 2008 this court directed that the petition shall be disposed of at the stage of admission. 2 The petitioner is the original plaintiff. In a suit filed by the original plaintiff, a decree was passed against the 2nd and 3rd respondent. The suit filed by the petitioner was for specific performance of agreement for sale of the suit property. Decree was passed directing the 2nd and 3rd respondents to execute a conveyance in respect of the suit property in favour of the petitioner. A decree for possession was also passed. An application was made by the present first respondent who is a third party praying that the he may be impleaded as a party to 2 the application for execution of the decree filed by the petitioner. Various contentions were raised in the said application including the contention that the decree was not binding on her. By the impugned order, the learned trial Judge has directed that the first respondent be added as a necessary party to the execution application. 3 After having heard the submissions of the learned counsel for the petitioner and the learned counsel for the first respondent, I find that the order impugned is illegal and deserves to be quashed and set aside. The first respondent was admittedly not a party to the suit in which the decree under execution was passed. The executing court could not have taken recourse to Rule 10 (2) of Order I of the Code of Civil Procedure,1908 for impleading the third party in execution application. Such an order was beyond the scope of the execution application. 4 Perusal of the application made by the first respondent at Exh.12 shows that various objections were raised by the first respondent to the execution of the decree. It was contended that the decree does not bind the first respondent. The first respondent claimed right, title and interest in the suit property. As stated earlier, the decree is also for possession. The said application filed by the first respondent purports 3 to be under Rule 10 of Order I as well as Rule 58 of Order XXI of the said Code. Though it is obvious that the application could not have been considered under the provisions of Rule 10 of Order I or of the Rule 58 of Order XXI, the first respondent had invoked section 47 of the said Code raising various objections. In view of the mandate of section 47 of the said Code, rights of the first respondent will have to be adjudicated upon in the pending execution application and not by way of a separate suit. In fact, on the basis of the said application, in accordance with law laid down by the Apex Court in case of Brahmadeo Chaudhary Vs. Rishikesh Prasad Jaiswal and another (AIR 1997 SC 856), the executing court ought to have made adjudication as regards the rights claimed by the first respondent in accordance with rule 97 of Order XXI of the said Code. 5 Though the impugned order deserves to be quashed and set aside, the trial court will have to be directed to make an adjudication on the basis of the objections raised by the first respondent in the said application in accordance with the law laid down by the Apex Court. 6 Hence, I pass the following order : i) Impugned Judgment and Order is quashed and set aside. 4 ii)The application made by the first respondent at Exh.12 is restored to the file of the executing court. iii)The trial court will proceed to hold adjudication on the basis of the objections raised by the first respondent in the said application at Exh.12 in accordance with the law laid down by the Apex Court in case of Brahmadeo (supra). iv)Adjudication shall be made as expeditiously as possible. v) The petition is partly allowed in above terms. vi)All contentions of the parties on merits are kept open. JUDGE