1 9149.04-wp IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. WRIT PETITION NO. 9149 OF 2010 Shri Sanjay D. Dalvi. ... Petitioner. V/s. Smt.Anita Anant Sawant and others. ... Respondents. Pritam P. Killedar for the petitioner. Vivek Khemla i/b. S.S.Dhuri for respondent No.1. Ms.Vrunda V. Surve for respondent Nos.2 to 7. CORAM: R.M.BORDE, J. DATED : 20th August 2011. P.C. : The order passed by the executing court rejecting an application tendered by the petitioner/ obstructionist is a subject matter of challenge in instant petition presented under Article 227 of the Constitution of India. The respondent No.1/ decree holder presented suit being Regular Civil Suit No.11/1989 under section 6 of the Specific Relief Act claiming recovery of possession against respondent Nos.2 to 17 i.e. defendants therein. The suit came to be dismissed and application seeking execution of decree being Regular Darkhast No.8/2006 came to be presented by respondent No.1. The petitioner herein/ obstructionist presented an application objecting to 2 9149.04-wp the execution of decree and delivery of possession in favour of respondent No.1 on the ground that there is a substantive suit presented by him claiming his entitlement in the property. It was pointed out that Regular Civil Suit No.15/2008 presented by the petitioner herein against respondent No.1 to 7 was dismissed and the order of dismissal of the suit is challenged in Regular Civil Appeal No. 11/2010 and the said appeal is pending. It is contended that the obstructionist has right, title and entitlement to the property and, unless he is heard, the decree passed in favour of respondent No.1 in earlier suit shall not be put to execution. The executing Court, however, after considering the contentions raised by the parties, rejected the said application. While rejecting the said application tendered by the petitioner/ obstructionist, it was observed by the executing Court that the substantive suit presented by the obstructionist claiming his entitlement to the property has been dismissed by the trial Court. That since there are findings recorded by the trial Court against the obstructionist in the suit which has been adjudicated after considering the contentions raised by all the parties to the execution, there is no need to further investigate in the matter. As such the application tendered by the obstructionist was rejected. 2. The learned counsel appearing for the petitioner vehemently contended that it was the responsibility of the executing court to afford hearing to the obstructionist and after appreciating his contention the executing court shall record findings on the issues raised by him. The executing court cannot straightway proceed to reject the application on the ground of dismissal of substantive suit. Reliance is placed on the judgment of the Apex Court in the case of Tanzeem-e- 3 9149.04-wp Sufia v. Bibi Haliman, AIR 2002 SC 3083. Relying upon the observations made by the Apex Court in paragraphs- 12 and 14 of the aforesaid judgment, it is contended that it was obligatory on the part of the executing court to appreciate the contentions of the obstructionist and record findings. The application tendered by the obstructionist cannot be rejected in a summary manner without recording findings in support of such order. 3. I have perused the judgment cited at bar. The facts giving rise to the judgment are totally different than the facts arising in the present matter. In the reported judgment, the suit presented by the obstructionist remained pending and during the execution of the decree which was a subject matter of challenge in a substantive suit presented by the obstructionist, he raised an obstruction. In the circumstances, the Apex Court ruled that it was obligatory on the part of the executing court to afford hearing and record findings on the objections raised by the obstructionist. However, in the instant matter, the substantive suit presented by the petitioner/ obstructionist being Regular Civil Suit No. 15/2008 against the decree holders as well as judgment debtors has been dismissed after full trial. There are findings recorded by the competent civil Court as regards the entitlement of the obstructionist, which are arrived at after appreciating the evidence led by the parties. Thus, there are findings on all issues available in the form of judgment in Regular Civil Suit No.15/2008 before the executing court. In view of this distinguishing feature, it was not obligatory on the part of executing court to proceed to hear the obstructionist once again on the same issues which are adjudicated in Regular Civil Suit No.15/2008 and record findings. It was, in fact, obligatory on the part of the 4 9149.04-wp executing court to take into account and apply the findings recorded in Regular Civil Suit No.15/2008 which is a litigation between the parties to the execution application. The executing Court has rightly adopted the reasons and applied findings recorded in Regular Civil Suit No. 15/2008 and proceeded to reject the application of the obstructionist. I do not find any error in the course adopted by the executing court. The respondent No.1/ decree holder is a person, who was evicted from the property without taking recourse to the provisions of law, has been directed to be put in possession in an enquiry conducted in a suit under section 6 of the Specific Relief Act. The decree holder cannot be kept away for long and, that too, merely on account of some frivolous intervention by the obstructionist. The order passed by the executing court is legal and proper and does not call for interference at the hands of this Court. Writ petition, therefore, stands dismissed for the reasons stated above. (R.M.BORDE, J.)