Bombay High Court
Sayyed Sattar Gulam Mohiuddin & Ors vs Sarubai Shripat Todke on 4 February, 2020
Author: V. K. Jadhav
Bench: V. K. Jadhav
902-WP-4529-2003
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
902 WRIT PETITION NO. 4529 OF 2003
1. Sayyed Sattar S/o Gulam Mohiuddin,
Age 50 Years, Occu : Service,
R/o Lakkad Kot, Jalna.
2. Sayyed Mukhtar S/o Sayyed Sattar,
Age 30 Years, Occu : Nil,
R/o. as above. ... Petitioners
(Original J.D.)
Versus
Sarubai s/o Shripat Todke,
Age 60 Years, Occu : Selling of Fire Wood,
R/o. H. No. 1-1-65/1, Lakkad Kot,
Jalna. ... Respondent
(Original D.H.)
.....
Advocate for Petitioners : Mr. Anil H. Kasliwal
Advocate for Respondent-sole : Mr. K. C. Sant
.....
CORAM : V. K. JADHAV, J.
DATED : 04th FEBRUARY, 2020
JUDGMENT :-
1. Heard both sides.
2. The petitioners/Judgment Debtors have filed the present Writ Petition against the order passed by the executing court on 25.09.2003 below Exhibit 31 in Regular Darkhast No. 23 of 2000. ::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 06:08:48 :::
902-WP-4529-2003 -2- It appears that the learned Judge of the executing court allowed the execution proceedings and directed that the present petitioners be detained in civil prison for seven days each and further directed the respondent/decree holder to deposit the subsistence allowance as per the rules and thereafter detention warrant for civil imprisonment be issued. By order dated 05.11.2003, this Court has granted interim relief in terms of prayer clause "C" and as such, the execution and operation of the aforesaid order passed Regular Darkhast No. 23 of 2000 below Exhibit 31 is stayed.
3. After lapse of 17 years, there is no point in sending the petitioners/judgment debtors in civil prison under execution of the decree. Learned counsel for the respondent/decree holder submits that the petitioners have made an encroachment over the suit property and the said encroachment is yet not removed. However, the respondent/decree holder would be at liberty to file execution petition on fresh cause of action, which the executing court shall entertain. Hence, I proceed to pass the following order:
ORDER I. The Writ Petition is hereby partly allowed.::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 06:08:48 :::
902-WP-4529-2003 -3- II. The impugned order dated 25.09.2003 passed below Exhibit 31, to the extent directing the petitioners to be detained in civil prison for seven days in execution of the decree in Regular Darkhast No. 23 of 2000, is hereby quashed and set aside.
III. The respondent/decree holder is at liberty to file execution petition afresh with a fresh cause of action, if so available.
IV. The Writ Petition is accordingly disposed off. Rule made absolute in the above terms.
( V. K. JADHAV, J.) vre/ ::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 06:08:48 :::