Advocates:
['SUJATA S MOGRE', 'PRADEEP J THORAT', '', 'R NO AND', 'R NO TO', 'F', 'A', 'B', 'B', 'C']

2.WPNo.49742016.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 4974 OF 2016

Tanaji Tukaram Jadhav

…

Petitioner

Versus

Anandrao Bapu Ghate Jadhav & Ors. …

Respondents

Smt.Sujata S Mogre, Advocate for the Petitioner.

Mr. Pradeep J Thorat, Advocate for the Respondents Nos. 1A to 1D, 1F, 2(A),

2(B), 2(B)(2), 2(B)(3) and 2(C).

CORAM:

S. M. MODAK, J

DATED:

10^th December, 2021

PC:-

1

Heard both the Advocates. The order dated 22^nd January 2016

passed by the Executing Court i.e. Court of Civil Judge Junior Division, Wai,

District Satara in Regular Darkhast No.2 of 2019 is challenged by the Decree

Holder. By the said order, the Executing Court has appointed a fresh Court

Commissioner – Advocate Shri Herkar. He was further directed to submit a

fresh report on the line that the plaintiff will get ¼ share in all the suit

properties i.e. the structure as well as the open plots of land situated at

different places.

2

According to the Decree Holder, there was no need for the

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2.WPNo.49742016.doc

Executing Court to appoint fresh Court Commissioner particularly when

already Court Commissioner’s reports are there on record. They are at

Exhibits 97 and 149. The grievance of the petitioner/Decree Holder is that

when these reports are already there on record, there was no need for the

Executing Court to again appoint a Court Commissioner. My attention is

invited to an order passed by this Court in Writ Petition No. 7019 of 2010 on

3^rd July 2015. The said petition was filed by the present petitioner only. It

was filed mainly on the background that the Executing Court directed the

present petitioner to file separate application for drawing final decree. While

disposing of this petition, this Court has passed the following order :

(i) It is held that it is not necessary for the plaintiff to file application

for passing final decree.

(ii) The Court shall consider the objections raised by the parties to

the reports of the Commissioner at Exhibits 97 and 149 and thereafter

proceed to pass a final decree.

(iii) Rule is partly made absolute in the aforesaid terms with no order

as to costs. Certified copy expedited.”

3

When the impugned order is perused as specifically paragraph No.2,

one can very well understand that the Executing Court has done the exercise

of hearing the parties in view of the directions given by this Court. On

perusal of the record, we may find that there were two Court Commissioners’

reports available on record. One is at Exhibit 97 dated 16^th March 2006. As

per the said report, Court Commissioner has suggested following

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arrangements :

(a) As suggested half share to the petitioner in the house bearing No.

345, 346, 347(1) and 347(2) and remaining half to the

respondents. Report had not suggested any share to petitioner in

the open land (whose map is at page 6). Their numbers are 422,

423, 424(1) and 424(2).

4

Whereas if the Commissioner’s report at Exhibit 149 is perused,

we may find that he has suggested the following arrangement :

(a)In the house property bearing No. 354 no share is suggested to the

petitioner, but entire house is suggested to the share of the present

respondent.

(b)In the property bearing House No. 173 no share is suggested to the

petitioner.

5

It seems that both the parties are not agreeable to the

arrangements suggested in above two reports by the Court Commissioners. It

may happen that the person in possession of the house or land may like to

retain those properties with them to the exclusion of other sharers. Even if

earlier Court Commissioners’ reports are considered, the present respondents

does not agree to the arrangeme