PRABHAKAR RAMCHANDRA DESAI Vs. KAMALAKANT RAJARAM PARAB

JUDGEMENT

(1.) Rule. With the consent of the parties made returnable forthwith and heard.

(2.) The challenge in the above petition filed under Article 227 of the Constitution of India is to the order dated 22.6.2012 passed by the learned Civil Judge, Junior Division, Vengurla. The said order in terms of Clause 4 thereof mandates the Bailiff to follow a particular course of action in identifying the 10 ft. wide road starting from Adeli Zarap Road leading to Kamalivir Village. The above petition, in a way, exemplifies the manner in which an order passed by this Court is sought to be over reached by the Respondent Nos.13 to 15. The Respondent Nos.13 to 15 p.m. wargaonkar herein are the proponents of the application Exhibit 122 which has been filed by them in which the impugned order has been passed. The other respondents are the decree holders and out of them the Respondent Nos.1 and 2 are represented before this Court. It is the submission of the learned Senior Counsel for the petitioner herein that the service on the other respondents is not necessitated in view of the fact that they are the beneficiaries under the decree in question.

(3.) The instant order has been passed in the execution proceedings which have been filed by the decree holders in a suit which was filed in a representative capacity under Order 1 Rule 8 of the Civil Procedure Code. The suit in question was filed by the villagers of village Adeli for the declaration of their right of easement over the 10 ft. wide road leading from Adeli Zarap Road to Kamalivir Village. Respondent Nos.13 to 15 were the main contesting defendants. The said suit was decreed by the trial Court by judgment and order dated 29.01.2003. In so far as the Respondent Nos.13 to 15 are concerned, they did not carry the matter higher and therefore the decree has become final and binding. The decree holders put the decree in execution by filing Regular Darkhast No.5 of 2007. In the said Regular Darkhast p.m. wargaonkar proceedings, the Bailiff came to be appointed for demarcation of the said 10 ft wide road in question which was carried out by the Bailiff, Rajendra Jaysing Rajput on 31.10.2007. In the panchanama recorded on the said day, the Bailiff has recorded that the said road was identified by the decree holders and that on such identification, it was found that there were cement and barbed wire fencing poles in the alignment, which were removed by the Bailiff. The Bailiff has submitted a report that the Respondent Nos. 13 to 15 herein refused to accept the notice of his visit to the site. Hence, in so far as the execution proceedings are concerned, the road in question was already identified on 31 st October, 2007 by the Bailiff appointed by the Court.