wp5240.11.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.5240/2011 Gajanan Narayan Uchegaonkar -vs- Pandurang Maruti Topre and others ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri K. S. Narwade, counsel for the petitioner. Shri C. S. Kaptan, counsel for the respondent No.1. CORAM : SMT. VASANTI A. NAIK, J. DATE : 18.10.2011. By this petition, the petitioner impugns the order passed by the executing Court on 11/08/2011 rejecting an application filed by the petitioner under Section 47 of the Code of Civil Procedure for referring the question as to whether the land was a fragment to the Sub-Divisional Officer. It is not in dispute that a suit filed by the respondent against the petitioner for specific performance of contract is decreed and the judgment and decree passed by the trial Court attained finality as the petitioner lost till the Apex Court. In the execution proceedings filed by the respondents, the petitioner contended that the land in question was a fragment within the meaning of the term under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 and hence, the said issue may be referred to the Revenue wp5240.11.odt 2/3 Authority for decision. The application was, however, rejected by the executing Court by an order dated 11/08/2011. The executing Court did not commit any error in rejecting the application filed by the petitioner as the petitioner had not raised a plea invoking the provisions of Sections 8 and 9 of the Act of 1947 and it was never the case of the petitioner in the suit for specific performance of contract that the suit land was a fragment and hence, a sale deed in respect of the land could not have been executed in favour of the respondents. Since this plea was not raised by the petitioner in the civil suit, the executing Court rightly held that the same could not have been raised by the petitioner for the first time in the execution proceedings. The executing court found that the objection of the petitioner was frivolous and the same was liable to be dismissed. The learned counsel for the respondent has rightly relied on the judgment reported in 2005 (2) Bom. C.R. 829, wherein this Court had not permitted the defendant in a suit for specific performance of contract to raise a plea about the applicability of Section 8 of the Act of 1947 in a second appeal as the said plea was not raised by the defendant therein before the trial Court and there was also no evidence on the plea which was sought to be raised by the defendant in the second appeal. If such a plea is not permitted to be raised in a second appeal, there is no reason to permit a party to raise such a plea in the execution proceedings. The impugned order is just and proper and calls for no interference. wp5240.11.odt 3/3 Hence, in the result, the writ petition fails and is dismissed with no order as to costs. JUDGE KHUNTE