1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Civil Application (CAW) No.1032 of 2010 In Writ Petition No.6015 of 2005 (Zopadpatti Adiwasi Griha Nirman Sahakari Sanstha Ltd. v. Prabhakar s/o Narayanrao Renge and others) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri S.S. Voditel, Advocate for Applicant. Shri S.S. Joshi, Advocate for R- 1, 2(A) to 2(E) and 3. Coram : R.M. Borde, J. Dated : 2 nd July, 2010 This is an application seeking a direction against the respondents not to raise any construction over the open plot areas obtainable in the layout of the suit property proposed by the respondents. The applicant herein/decree-holder is raising exception to the order passed by the Executing Court under Section 47 of the Code of Civil Procedure, whereby the objection tendered by the judgment-debtors came to be allowed and the execution application came to be dismissed. The order passed by the Executing Court on 5-2-2000 is subject-matter of challenge in the instant petition. It is contended by the learned counsel appearing for the applicant/petitioner that the respondents are trying to raise construction over the open space. He contended that the applicant/petitioner has right and entitlement in the disputed property. It is further contended that in order to balance the equities, it is desirable that the open space, which forms the part of 2 the disputed area, shall be maintained and the respondents shall not be permitted to carry out any developmental work on the open space. The respondents have resisted the application by filing reply. It is contended that the terms of the compromise decree were not observed by the petitioner, and as such the objection application presented in the pending execution proceedings was entertained by the Executing Court and the execution application presented by the applicant/decree-holder came to be rejected. It is further contended that the terms of the compromise decree were settled on 18-3-1987 and there were breaches in the observance of the compromise decree. The applicant/petitioner, however, has seriously objected, contending that the analogy drawn by the Executing Court in respect of the alleged violation of the terms of compromise decree is not legally sustainable. It would not be appropriate for this Court to go into the merits of the matter, and the same can be gone into at the time of final hearing. It has been brought to my notice by the respondents, that a scheme under Section 20 of the Urban Land (Ceiling & Regulation) Act was sanctioned by the Competent Authority on 29-5-1993. As per the sanctioned scheme, the respondents have divided the property, drawn the layout map, demarcated the plots, sold the same, and accordingly created third party interest. Most of the land is developed by the purchaser. Apart from this, 33% of the land vests in the State Government as per stipulation contained in the sanctioned scheme. There was a challenge raised to the sanctioned scheme at the instance of the applicant herein in Writ Petition No.423 of 1999, which came to be dismissed by this Court by order 3 dated 30-9-1996, and the Special Leave Petition raising exception to the order passed by this Court was turned down by the Apex Court by order dated 3-8-1998. The applicant/original decree- holder presented a suit agitating the same grievance as was raised in writ petition, being Regular Civil Suit No.928 of 1998, which came to be dismissed by the Trial Court. First Appeal No.359 of 2006 came to be filed challenging the dismissal of the suit. The said appeal is admitted and pending. In the pending appeal, by presenting Civil Application No.3501 of 2006, a similar prayer was made. However, this Court had rejected the prayer in view of the order passed on 7-8-2006. There was a challenge raised to the rejection of the application presented in the appeal by the applicant herein before the Apex Court by filing a Special Leave Petition, which was also turned down. In this view of the matter, the present application tendered at a belated stage need not be entertained. It is to be noted that during the continuance of the petition, various developmental works are undertaken, and various orders passed during the pendency of this petition were subjected to challenge from time to time. However, the applicant/petitioner was not able to secure any relief. In this view of the matter, instant application deserves no consideration. However, as the petition is pending, wherein the entitlement of the applicant/petitioner to secure the execution of the compromise decree is a matter in issue, it would be appropriate to direct that any further development that would be made by any of the parties to the litigation on the disputed site shall be subject to the final outcome of the pending writ petition. In this view of the matter, the instant civil application stands disposed of. Judge. pdl.