1

924-wp-9022-19.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 9022 OF 2019

NARSING APPARAO DAMODARE

VERSUS

KONDOPANT DIGAMBARRAO KULKARNI

...

Advocate for the Petitioner : Shri S. G. Chapalgaonkar

Advocate for the Respondent - sole : Shri H. V. Tungar

…

CORAM : RAVINDRA V. GHUGE, J.

DATED : 14^th AUGUST, 2019.

...

PER COURT :

1.

The petitioner, original Judgment Debtor, is aggrieved

by the order dated 15/03/2019 passed by the executing Court,

by which, his application Exhibit 98 filed in Regular Darkhast

No.22/2002, has been rejected.

2.

Contention of the petitioner Narsing (J.D.) is that the

decree delivered by the Trial Court in RCS No.178/1997, dated

19/03/2001 is rendered inexecutable. The respondent Decree

Holder (D.H.) had set out in the description of the suit

property in the 1997 suit that the petitioner Narsing had

occupied 60 x 50 ft. area on the west side of Gat No.154.

2

924-wp-9022-19.odt

Unfortunately, the petitioner did not contest the said suit and

it was decreed exparte. The said decree has now attained

finality. However, after the execution proceedings began in

2002, the Judgment Debtor (J.D.) claimed to have been put in

possession of 15 x 68 ft. area in Gat No. 154 on the same side,

by the government. Presently, the J.D. is occupying that

portion which is 15 x 68 ft.

3.

Further contention is that the same plaintiff D.H. filed a

subsequent suit bearing RCS No.79/2017 wherein the J.D. has

been arrayed as defendant No.9 and a sketch map is placed on

record to indicate that the petitioner is occupying 15 x 68 ft.

area. He was put in possession by the government by a

'Kabala' and the J.D. is occupying that portion. As the

government has put the J.D. into possession, the D.H. cannot

seek execution of the earlier decree until the suit of 2017 is

decided. The earlier decree has, therefore, become

inexecutable.

4.

The learned Advocate for the D.H. submits that the

earlier judgment and decree dated 19/03/2001 was on the

3

924-wp-9022-19.odt

basis of the land, which was occupied by the J.D. The D.H.

had given the land on rent to the J.D. and thereafter he

declined to evict himself from the said property. The 1997 suit

was filed for the purpose of recovering the possession of the

said property. The execution proceedings were initiated with

promptitude on 06/07/2002.

5.

He further submits that as it was noticed in 2017 that

some more persons had occupied the same plot in Gat No. 154,

the 2017 suit was instituted. Based on information, the D.H.

averred in the second suit that the J.D. was now occupied 15 x

68 ft. land. There are certain other persons who have

occupied adjacent areas. The D.H. has a right to acquire

possession of land admeasuring 50 x 60 ft. The execution

proceedings are purely as against the J.D. and if the J.D.

admits that he is in possession of 15 x 68 ft. land, he needs to

be removed from the said area in view of the decree in favour

of the D.H. dated 19/03/2001.

6.

It appears from the record and the submissions of the

learned Advocates that there are several disputed issues raised.

4

924-wp-9022-19.odt

The 2017 suit is also pending. The D.H. has put the 2001

decree for execution and the execution proceedings have to be

taken to a logical end. If there are any obstacles or

impediments, the executing Court, in my view, can deal with

the said aspects.

7.

It also needs to be noted from the records that if the J.D.

claims to be occupied only 15 x 68 ft. land and claims to be put

in possession by the Government, this contention cannot be

tested in the backdrop of the decree against him delivered on

19/03/