JITENDRA BABURAO KARDE Vs. GANPATI BABURAO KARDE

JUDGEMENT

(1.) AFTER the order of dismissing this petition for non-prosecution was passed Mr. Railkar appeared before this Court and requested for restoration of the petition. Mr. Dalvi for the respondents has no objection for restoration of this petition. Accordingly petition was restored to file and taken up for final hearing forthwith by consent.

(2.) THIS writ petition under Article 227 of the Constitution takes exception to the order dated 24-8-1995 passed by the Civil Judge, Senior Division, kolhapur below Ex. 138 in Regular Darkhast No. 283 of 1988. The petitioner had Filed a suit for partition and possession. The said suit was decreed in favour of the petitioner. The said decree was assailed by the respondent before this court by way of First Appeal No. 1412 of 1988. During the pendency of the said First Appeal parties arrived at some settlement and filed consent terms in this Court. The petitioner accordingly moved the executing Court for execution of the decree in terms of the said consent terms. In the said proceedings the respondent-judgment debtor filed application under Sections 47 and 51 of Code of Civil Procedure praying for reopening of the partition and for direction to restore the possession of Survey No. 298/3/6 immediately to respondent and to direct the petitioner to maintain status quo in respect of standing crops and trees in the said suit property and Survey No. 196 till the disposal of the application. This application was resisted by the petitioner as according to him the respondents cannot be permitted to reopen the partition and thereby circumvent consent terms arrived at between the parties before this Court. The Court below while considering the said application has directed the Collector to give effect to the consent terms forwarded with a letter dated 1-8-1992 under Outward no. 5642. In other words, there is no dispute that the consent terms referred to in the said order are the same which were filed before this Court in first Appeal No. 1412 of 1988. This order has been taken exception by the petitioner by way of present writ petition.

(3.) AFTER examining the record with the assistance of the learned counsel for both the sides I find no infirmity in the approach adopted by the Court below. The executing Court has merely restated the correct position by directing the collector, Kolhapur to give effect to the consent terms arrived between the parties and which were produced before this Court. No other order could be passed in such a situation. It appears that respondent No. 1 approached the executing Court with much wider relief but that is not the relief which has been granted under the impugned order. Whereas the executing Court has merely directed the collector to give effect to the consent terms, by no stretch of imagination such an order can be said to have caused any prejudice to any of the parties. In the circumstances I find no reason to interfere in writ jurisdiction. Hence petition dismissed. Petition dismissed.