CHHABUTAI AND ORS. Vs. GANESH

JUDGEMENT

(1.) RULE . Heard finally with consent of the learned Counsel for the parties.

(2.) CHALLENGE in the present writ petition is to the order dated 2 -5 -2013 passed by the executing Court whereby the application that was moved by the original plaintiff for deleting the name of defendant No. 3 from the final decree proceedings on the ground that she had expired came to be rejected.

(3.) SHRI S.G. Karmarkar, the learned Counsel appearing for the petitioners submitted that the executing Court erred in rejecting the application moved by the decree holder. He submitted that the suit was for partition and separate possession and only a preliminary decree had been passed by the trial Court. As said preliminary decree was under execution, on account of death of one of the parties said decree could be modified in view of change of circumstances. In this regard he placed reliance decision of the Supreme Court in Ganduri Koteshwaramma and another vs. Chakiri Yandi and another, : 2012(1) Mh.L.J. 613. He, therefore, prayed for setting aside the impugned order.