1 wp 3320.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3320 OF 2011 1. Babu S/o Shankar Hammand, Age : 50 Years, Occu. : Agril., 2. Laxman S/o Shankar Hammand, Age : 40 Years, Occu. : Agril., 3. Vastshalabai W/o Shankar Hammand, Age : 65 Years, Occu. : Household, All R/o Dongaon, Tq. Mukhed, Dist. Nanded. .. Petitioners Versus Dattatraya S/o Waman Dongaonkar, Age : 62 Years, Occu. : Agril., R/o Dongaon, Tq. Mukhed, Dist. Nanded. .. Respondent Shri N. R. Jamdhade, Advocate for Petitioners. Shri M. V. Ghatge, Advocate h/f Shri B. N. Gadegaonkar, Advocate for the Respondent. CORAM : S. V. GANGAPURWALA, J. DATE : 15TH JUNE, 2011. 2 wp 3320.11 ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The present respondent had filed a suit for perpetual injunction. The same came to be decreed. Thereafter, the respondent filed an application for execution. In the same the respondent also filed an application Exhibit 09 to send the petitioners to civil prison for disobedience of the decree. The said application came to be allowed vide order passed on 13.09.2010. The petitioners have assailed the same in the present writ petition. 3. Shri Jamdhade, the learned counsel submits that in fact, the petitioners had filed their say, but the same was not considered by the learned Trial Judge and has passed the order on the premise that no say has been filed. The learned counsel further contends that no proper opportunity was given to the petitioners to contest the said application. Even the procedure as is laid down U/O 21 Rule 37 has not been followed. 4. Shri Ghatge, the learned counsel for the decree holder submits that the petitioners had not filed any say to the 3 wp 3320.11 application Exhibit 09. They had filed their say when they appeared pursuant to notice of execution. As no say was filed the avernments made by the respondent were uncontroverted and as such, the learned Trial Judge has rightly passed the order impugned in the present writ petition. 5. The step to send a person in civil prison is an extreme step. While passing such an order the provisions of execution have to be scrupulously followed, also an opportunity is required to be given. On 31.10.2009 an order of other side to say was passed. Thereafter on 13.09.2010 the order impugned is passed it does not appear from the order impugned that the Court had followed the procedure as is laid down U/O XXI Rule 32 and and/or Order XXI Rule 37 of the C. P. C. 6. In the result, the impugned order is quashed and set aside. The petitioner is given liberty to file say to the application Exhibit 09 in accordance with law. The writ petition is allowed in above terms with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/June 11