JUDGMENT - KHANWILKAR A.M., J.:—Rule.

2.Rule made returnable forthwith by consent.

3.As short question is involved, matter taken up for final disposal forthwith by consent.

4.This writ petition takes exception to the judgment and order passed by the 8th Additional District Judge, Pune dated 7th March, 2002 in Civil Appeal No. 51 of 2002. The petitioner claims to be owner of suit flat consisting of six rooms with attached W.C. and bath room in Building known as Shrikrishna Apartment situated at S. No. 557/8 final plot No. 473/30 Gultekdi, Pune. The petitioners father instituted a suit for possession against respondent being Civil Suit No. 1044 of 1986. This suit was decreed against respondent and respondent was ordered to deliver possession of the suit premises. Against that decision, respondent unsuccessfully carried the matter in appeal and latter before this Court by way of writ petition as well as appeal before Apex Court. To put it differently, decree for possession against respondent came to be confirmed right upto the Apex Court. During the pendency of the suit, petitioners father, who had instituted the suit expired and, petitioner was substituted as heir and legal representative of the plaintiff and also being co-owner. Be that as it may, the petitioner took out execution proceedings for obtaining possession as per the decree passed by the trial Court and confirmed upto the Apex Court. In the execution proceedings, respondent took objection that the petitioner was incompetent to pursue the execution proceedings to its logical end- so long as the petitioner has not obtained probate in respect of the Will executed by his father in his favour. However, that objection was overruled and the execution proceedings taken out by the petitioner was allowed. The respondent carried the matter in appeal before the 8th Additional District Judge, Pune being Civil Appeal No. 51 of 2002. In appeal, District Court has accepted that argument of the respondent relying on the decision of this Court reported in 2001(3) Bom.C.R. 245 in the case of (Babasaheb Yeshwant Anandrao Patil v. Smt. Manjulabai Balwant Gaikwad)1. The Appellate Court has found that it was imperative for the petitioner to obtain probate so as to become entitled to take execution proceedings to its logical end. This decision is subject matter of the present petition.

5.The learned Counsel for the petitioner contends that the Appellate Court has misdirected itself in placing reliance on the decision of Babasaheb Patil (supra). The learned Counsel contends that in the present case, it is not in dispute that the suit property is situated outside the ordinary Original Civil Jurisdiction of the High Court of Judicature at Bombay and it is also not in dispute that the Will has been executed by the petitioners father in Pune which is also outside the Ordinary Original Civil Jurisdiction of the High Court of Judicature at Bombay. On this premise the learned Counsel contends that in such a situation, requirement of obtaining probate is not necessary in view of the plain language of section 213 read with section 57 of the Indian Succession Act, 1925. If that argument was to be accepted then, obviously there was no other ground which has been held against the petitioner and therefore, petitioner was entitled to pursue the execution proceedings and succeed in getting back the possession of the suit property. The learned Counsel has also placed reliance on the decision of our High Court in A.I.R. 1945(32) Nag. 237 in the case of (Ahemad s/o. Abdul Latif and another v. Ghisia Hira Teli and another)2, as also on case reported in 1979 Mh.L.J. 308 in (Jyoti w/o. Jagdish Singhai v. State of Maharashtra)3, to support the above contention. The learned Counsel has distinguished the decision in the case of Babasaheb Patil (supra) by contending that there is nothing to show that in that case the property or the execution of the Will was excluded by virtue of section 213 read with section 57 of the

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