Surekha Suresh Salunkhe Since ... vs Jayant Tukaram Bhosale
2021 Latest Caselaw 12692 Bom

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                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION

                                         WRIT PETITION NO. 5086 OF 2021

                   Smt. Surekha Suresh Salunkhe
SNEHA              since deceased through her
NITIN              legal heirs Mrs. Nutan Arun Chavan
CHAVAN
Digitally signed
                   and Ors.                                   .. Petitioners
by SNEHA NITIN
CHAVAN
                         V/s.
Date: 2021.09.06
17:44:13 +0530     Mr. Jayant Tukaram Bhosale                 ..Respondent
                                                   ----
                   Ms. Vishakha Pandit i/b Avinash Fatangare for the Petitioners.
                                                   ----
                                                CORAM : C.V. BHADANG, J.

DATE : 06 SEPTEMBER, 2021

P.C.

1. The challenge in this petition is to the order dated 14

February 2021 passed below Exh. 92 by the Executing Court in

Regular Darkhast No. 30 of 2004. The Petitioner are the legal heirs

of original Defendant No.1 Surekha Salunkhe (since deceased).

Respondent Jayant Bhosale along with seven others had filed

Regular Civil Suit No. 57 of 1997 against late Surekha Salunkhe and

others for partition and separate possession in respect of land

bearing Survey No. 2/1 admeasuring 0.33.11 H. situated at village

Revas, Taluka Alibag and the house property bearing House No. 399

(old house No. 305) of grampanchayat Revas.

                          Sneha Chavan                                           page 1 of 4
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2. The learned Trial Court by a Judgment and Decree dated 31

October 1998 has partly decreed the suit to the extent of granting

1/3rd share in the agricultural land. The learned Trial Court,

however, refused to grant a share in the house property. This was

challenged by the plaintiffs in Civil Appeal No.173 of 1998. The

learned District Judge at Alibaug by a Judgment and Order dated 28

July 2004 has allowed the appeal and granted the share in the

house property also as set out in the said Judgment. The petitioners

Surekha Salunkhe and Nutan Salunkhe have challenged the said

decree before this Court in Second Appeal (ST) No. 3511 of 2017

which is pending. The execution application is filed for execution of

the said decree.

3. It appears that by an order dated 05 November 2016 below

Exh. 85, the Executing Court directed issuance of the possession

warrant in respect of room No. 11 and 12 as shown in the map

annexed to the application. The Petitioner filed application Exh. 92

on 30 January 2017 for condonation of delay in filing application,

Exh.93 to set aside the said order dated 05 January 2016 passed

below Exh. 85. It appears that the Executing Court heard both these

applications and by impugned order dated 14 February 2020 has

rejected the application Exh. 92.

     Sneha Chavan                                             page 2 of 4
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4. I have heard the learned counsel for the Petitioners. Perused

record. The record discloses that the application Exh.85 seeking

possession of room Nos. 11 and 12 was filed on 28 December 2015.

The Executing Court had recorded that there was no reply filed to

the said application by the Judgment Debtor. Such orders were

passed on 20 January 2016 and 23 March 2016. After this,

application Exh. 85 was decided on 05 November 2016 directing

issuance of possession warrant in respect of room Nos. 11 and 12.

The record further discloses that the possession warrant was

executed as per the report/panchnama of the bailiff dated 11

January 2017. The possession receipt is shown to be signed by the

Judgment Debtor No.1. It can thus be seen that the part of the

decree pertaining to the house/residential property in respect of

room Nos. 11 and 12 has already been executed/satisfied on 11

January 2017. The execution pertaining to the agricultural land is

said to be pending. It is significant to note that the Petitioner had

failed to file a reply since 28 December 2015 till on 05 November

2016. The Petitioners have not shown any acceptable reason for

their failure to file the reply.

     Sneha Chavan                                              page 3 of 4
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5. In that view of the matter, I do not find that case for

interference in the impugned order is made out in the supervisory

jurisdiction of this Court under Article 227 of the Constitution of

India. The petition is without any merit and is accordingly

dismissed.

C.V. BHADANG, J.

     Sneha Chavan                                            page 4 of 4