BHALCHANDRA SHRIKRISHANA VAIDYA Vs. SARASWATIBAI VINAYAK MANDE

JUDGEMENT

(1.) BY this petition the original judgment debtors are challenging the legality and correctness of the order, dated 29th August, 1991 passed by the learned Joint Civil Judge, Senior Division, Thane as the Executing Court by which order the learned Judge was pleased to grant application at Exh. 24 preferred by the decree holders and dismiss the application at Exh. 34 preferred by the judgment debtors. The learned Judge by the said order was further pleased to direct issuance of warrant of possession under Order XXI, Rules 35 and 36 of the property in suit bearing House No. 109/E and 111/A as shown in the certified copy of the Will along with the plaint at Exh. 69 in Special Civil Suit No. 47 of 1979.

(2.) THE respondents -original decree holders admittedly obtained a decree for possession of two houses as also some ornaments etc. In the Special Civil Suit No. 47 of 1979 filed by them against the present petitioners.

(3.) THEREAFTER the decree holders filed darkhast for execution of the decree. In the prayer clause they mentioned that the Court be pleased to deliver possession of the suit property to the decree holders by attornment of tenancy and by affixing copy of the warrant in some conspicuous place on the suit property and by proclaiming to the occupants the substance of the decree in regard to the property. We are not concerned in this proceeding with the other prayers. This application for execution was filed on 1.11.1990. It appears that there has been further application on behalf of the decree holders complaining that they have not received the gold ornaments and therefore the value thereof be ordered to be paid to them by the decree holders. The said application was made on 27th June, 1991. It appears that thereafter on the very same day i. e. 27th June, 1991 the decree holders made a further application in the pending darkhast proceedings. It was pointed out that the decree holders have prayed for possession in respect of the Municipal House Nos. 109/E and 111/A in lane No. 53, situated at Rambaug, Kalyan, District Thane. The decree holders further submitted that the sketch of the aforesaid house properties was filed by the judgment debtors themselves in the Trial Court in the said Special Civil Suit No. 47 of 1979. The decree holders filed the certified copy of the sketch of the Municipal House Nos. 109/E and 111/A. It was submitted that since the sketch was admitted and filed by the judgment debtors now there should not be any dispute about the description of the said house properties. It was prayed by the said application that the Court be pleased to issue possession warrant directing the Court bailiff to hand over the possession of the house properties as shown by letter ABCD (House No. 111/A) and EFGH (House No. 109/E) in the certify copy of the sketch of the said house properties. The said application was opposed by the judgment debtors. It was contended that the decree holders cannot make use of the sketch attached to the Will Exh. 69. It was also contended that the decree was only in respect of the two houses meaning thereby only structures and the land underneath those structures and nothing more. It is relevant to notice that the judgment debtors simultaneously made an application at Exh. 34 asking the Court to mark the decree as satisfied inasmuch according to the judgment debtors symbolical possession was already given to the decree holders by attornment of tenancies of various tenants in pursuance to the execution application.