1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2234 OF 2010 Bhila s/o. Baliram Wankhede .. petitioners Versus Balkrushna s/o. Jagannath Gujarathi deceased and others. .. Respondent. --- Mr. N.C. Garud, Advocate for petitioner. Mr. S.D. Kulkarni, Advocate for the respondents. CORAM : R.M. BORDE, J. DATE : 19th April, 2010. ORAL ORDER :- 1] An application tendered by the judgment debtor below Exhibit 1, in R.D. No. 295/2010, has been turned down by the Executing Court in view of the order passed by the court on 25/2/2010 and the order passed by the Executing court, is the subject matter of challenge in this petition. 2] A decree on the basis of the compromise was passed by the trial court, way back in the year 1974. As per the terms of the settlement, the 2 defendants were directed to execute a sale deed in favour of the plaintiffs and the plaintiffs were supposed to pay the balance amount of Rs. 5,000/- in favour of the defendants. It was also agreed in the agreement that if the defendants pay an amount of Rs.20,000/- to the plaintiffs alongwith interest @ 12% p.m. and Costs by 31st December, 1976, the plaintiffs should not execute the decree and if the defendants/Judgment debtors fail to pay, then the plaintiffs shall execute the decree. The defendants failed to pay the amount as settled in view of the para 2 of the compromise decree. 3] The plaintiffs as such, became entitled to secure the execution of the sale deed from the defendants. An application seeking execution of the decree was presented by the plaintiffs on 12/11/1988. In the meantime one of the decree holders Balkrishna died. While he was alive, he executed a will deed allotting his share in the property to his another son Arvind. The decree holder as such, presented an application seeking impleadment of Arvind as party to the Darkhast, which was allowed by the trial court. The judgment debtor has raised two fold objections for executing the Darkhast. Firstly it is contended that considering the impleadment of Arvind in the year 2002, the Darkhast is beyond limitation. It is further contended that Suresh was transposed as decree holder on 20/3/1999 and as such, although the darkhast is presented on 29/11/1988 the same shall be deemed to have been filed beyond limitation. It is also the contention of the judgment debtor that there was no necessity of securing probate The Executing Court, on 3 consideration of the contentions raised by the parties, has turned down the application. 4] It cannot be controverted that Arvind s/o. Balkrishna is entitled to claim benefit on the basis of the will deed, even if it is assumed that it was not warranted for him to secure a probate. The claim raised by Arvind on the basis of will deed by Balkrishna, in any event, cannot be turned down. So far as the objection raised by the judgment debtor in respect of decree holder No.2 is concerned, it is different that he was already impleaded as party to the proceeding and darkhst seeking execution of the decree was very much presented within the prescribed period of limitation. The objection raised by the judgment debtor bears no substance and has been rightly turned down by the trial court. It is to be noted that the decree under execution is passed in 1976 and the execution proceeding is dragged for more than 12 years under one pretext or other facilitations at the hands of the judgment debtor. The objection raised by way of instant application are of frivolous character and with a view to prolong the execution of decree. In this view of the matter, while rejecting this writ petition, the petitioner needs to be directed to pay cost. The writ petition is rejected summarily. The petitioner is directed to pay costs of Rs.5,000/-. [R.M. BORDE,J.] Grt/- 4