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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.8759 OF 2017

Hirabai Bansilal Bagdiya (Died) LRs & Others

PETITIONERS

VERSUS

Ramniwas Bansilal Lakhotiya (Died) LRs & Ors. RESPONDENTS

.......

Mr. Milind K. Deshpande, Advocate for the petitioners

Mr. P. R. Katneshwarkar, Advocate for respondents No.1a and 1b

....…

[CORAM : NITIN B. SURYAWANSHI, J.]

DATE : 20

^th JULY, 2022

ORDER :

1.

The petitioners are aggrieved by the order dated 4^th

March, 2017 passed by the learned Ad Hoc Additional District

Judge-3, Jalna below Exhibit-4 in Regular Civil Appeal No. 166 of

2016.

2.

The petitioners filed objection petition (Exhibit-31) in

Special Darkhast No. 23 of 2011, under Order XXI, Rule 97 read

with Rule 101 of the Civil Procedure Code. Subject matter of the

objection petition is the suit house bearing Municipal House No.

3486 (old) and 3536 (new). The Executing Court, after recording

the evidence, by a detail order, dismissed the objection petition

filed by the petitioners.

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3.

As per the decree passed in Regular Civil Suit No. 48 of

1971, the predecessor in title of the decree holder – respondent,

was declared as owner of the suit property. This decree was

challenged by the daughters of original owner and possessor of

the suit property, Late Motilal Gajbi, by filing Regular Civil Suit

No. 376 of 1975. The relief of partition and declaration that the

decree in Regular Civil Suit No. 48 of 1971 is not binding on

them was sought in RCS No. 376 of 1975. The daughters of

deceased Motilal Gajbi were not parties to the RCS No. 48 of

1971. RCS No. 376 of 1975 was dismissed and the said order of

dismissal is confirmed by the High Court and Special Leave

Petition No. 31350 of 2009 was pending before the Hon’ble Apex

Court, hence the objection petitioners filed objection in Special

Darkhast No. 23 of 2011 contending that unless the special leave

petition is decided, the decree cannot be executed. It is further

contended that since the objection petitioners were not parties

to the suit in which the decree under execution has been passed,

the decree is not binding on them. It is further claimed that the

objection petitioners filed RCS No. 136 of 1991 against deceased

Shankarlal Gajbi for perpetual injunction. RCS No. 136 of 1991

was dismissed by the Trial Court. Regular Civil Appeal No. 131 of

2000 filed by the objection petitioners was allowed and

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injunction has been granted against deceased Shankarlal. The

petitioners, therefore, prayed for dismissal of the Execution

Petition.

4.

After recording the evidence, the Executing Court, by a

detail judgment, dismissed the objection holding that the decree

under execution is the decree between licencee and licensor, the

petitioners are not parties to the decree. When such decree is

put in question, if any third party claims ownership by denying

ownership of the licensor, the third party has an option to file

suit and get their right declared and get possession of the

property from the licensor. The Executing Court further held that

the objection petitioners have not prayed for adjudication of their

rights, but have claimed that as they have filed special leave

petition in the Hon’ble Apex Court and as possession has been

handed over by the judgment debtor Shankarlal to them, by way

of a letter, the Execution Petition be dismissed. Therefore, since

the objection petitioners are not praying for their right or title,

the present application is not maintainable. By referring to Order

XXI, Rule 104 of the CPC, the Executing Court has held that

every order made under Rules 101 or 103 of the CPC shall be

subject to the result of any suit. Since RCS No. 376 of 1975 is

decided against the petitioners and the decision is confirmed up

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to the High Court, the challenge is pending before the Hon’ble

Apex Court, if the