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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

901 WRIT PETITION NO. 3905 OF 2021

KAKASAHEB RAMBHAU NIKAM AND OTHERS

VS

RAJENDRA RAMBHAU ZADBUKE AND OTHERS

Mr. Kishor R. Doke, Advocate for the petitioners

CORAM :

N. J. JAMADAR, J.

DATE :

03-03-2021

ORAL ORDER :

.

Heard learned counsel for the petitioners.

2.

The challenge in this writ petition is to an order passed

by the learned Civil Judge Junior Division, Washi on an application

(Exh.20) in Misc. Civil Application No.58/2019 whereby the

petitioners have been directed to remove the tin-shed and hotel

which has been unauthorizedly erected over the suit premises in

RCS No.371/2013.

3.

There is prelude to this order. The respondents herein

instituted the suit for perpetual injunction against the petitioners

herein from causing obstruction to the possession and enjoyment of

the plaintiffs over the premises described in para Nos.3 to 9 of the

plaint. The respondents-plaintiffs preferred an application for

temporary injunction. By an order dated 19-01-2015 the learned

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Civil Judge was persuaded to allow the said application (Exh.5) and

the defendants-petitioners were restrained from doing any act

which has the effect of causing obstruction to the peaceful

possession of the plaintiffs over to suit plot and over open space

supposedly in the marginal distance area situated between the suit

plots and Washi phata to Washi village road till final disposal of the

suit. Indisputably, said order dated 09-01-2015 still holds the field.

4.

The respondents-plaintiffs preferred instant application

alleging that in breach of the injunction order the petitioners have

erected tin-shed and hotel over the very premises in respect of

which the petitioners were restrained from causing obstruction.

After hearing the submissions on behalf of petitioners and

respondents, the learned Civil Judge was persuaded to enter a

finding that at the time the temporary injunction order was passed,

no structure was erected on the suit premises and despite the order

of the court restraining the petitioners-defendants from causing

obstruction to the possession and enjoyment of the respondents-

plaintiffs, the petitioners have unlawfully erected the structures

thereon. The learned Civil Judge was thus persuaded to direct the

petitioners to remove the said structure on their own within a

period of two months of the impugned order. In default, the

respondents were allowed to execute the order with assistance of

police, if required.

5.

Learned counsel for the petitioners urged that the

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learned Civil Judge committed a manifest error in placing reliance

upon the judgment of learned Single Judge of this court in the case

of Nirmalabai Jaisingh Patel Vs Poonam Siyaram Maharaj Vyas (Writ

Petition No.4984/2004) dated 22-12-2004, wherein it was interalia

observed that the provisions of the code relating to execution of

decrees are deemed to apply to even cases for execution of orders.

6.

Learned counsel for the petitioners urged that the

aforesaid view is not in consonance with law. Reliance was placed

on the judgment of the Supreme Court in the case of Kanwar

Singh Saini Vs High Court of Delhi (2012) 4 SCC 307, wherein

the Supreme Court enunciated the legal position as regards the

applicability of the provisions contained in order 39 Rule-2-A, after

passing of the decree. The Supreme Court observed, interalia, in

para 20 to 21 as under:

“20. The proceedings under Order 39 Rule -A are available

only during the pendency of the suit and not after conclusion of

the trial of the suit. Therefore, any undertaking given to the

court during the pdendency of the suit on the basis of which the

suit itself has been disposed of becomes a part of the decree and

breach of such undertaking is to be dealt with in execution

proceedings under