VIJAYAKUMAR Vs. MANOHAR RAMACHANDRA AWATE

JUDGEMENT

(1.) THIS writ petition is preferred by Judgment Debtors 1 (a) and 1(b) in Execution No.9/2009 against order dated 07.07.2012 whereunder objections filed by them for issuing delivery warrant to deliver the suit schedule properties to decree holders 1(a) to 1(c) and decree holder No.2 as per the final decree passed in FDP 3/1988 dated 19.09.2005 based on the Commissioner's report has been overruled and delivery warrant has been ordered to be issued.

(2.) ONE Smt.Chaya @ Champa, w/o Manikrao Awate filed a suit O.S.No.75/1986 for partition and separate possession of 1/18th share in the suit schedule properties. Said suit came to be partly decreed on 22.10.1987. It was declared that plaintiff has 1/18th share in the suit properties and defendants -1 to 4 have 1/6th share in the suit properties. It was ordered that share of the plaintiff and defendants 1 to 4 be partitioned by metes and bounds and separate possession of their share be given to them. Enquiry for rendering of the accounts under Order 20 Rule 12 CPC also came to be ordered. Thereafter final decree proceedings in FDP No.3/1988 was initiated by plaintiff and defendants 1 and 4. Final decree came to be passed on 19.09.2005. Original defendants 1 and 4 who had got transposed as applicants -2 to 3 in the Final Decree proceedings filed Execution Petition No.9/2009 seeking handing over possession of the premises to them namely, the properties described in the execution petition and prayed for issue of delivery warrant. Said execution petition was resisted to by the judgment debtors 1 (a) and 1(b) namely, the legal heirs of 2nd defendant by filing objections and contending that against the order of the final decree, appeal RFA No.593/2006 has been filed and same is still pending; and as such, execution petition is not maintainable. It was also contended that all issues relating to delivery of possession was required to be adjudicated and decided by the Court adjudicating the Final Decree Proceedings namely, FDP 3/1988 and separate execution petition is not maintainable. Hence, it was contended that order for delivery of possession issued is erroneous and they sough for dismissal of execution petition.

(3.) EXECUTING Court, after examining rival contentions, over ruled these objections after noticing that RFA No.593/2006 had been dismissed as having abated on 24.05.2010 and held execution petition is maintainable. Hence, it ordered for issue of delivery warrant as prayed for. Said order is impugned in this writ petition.