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1. Heard Shri Gharote, learned Counsel for the applicants, and Shri Shukla, learned Counsel for the non-applicants.

2. The revision is directed against the order dated 15-3-1995 passed by the 2nd Joint Civil Judge, Junior Division, Nagpur below Exh. 1 in Regular Darkhast No. 25/1995 whereby Executing Court issued warrant of possession against the present applicants (original plaintiffs) under Order XXI, Rule 32(1) read with Order XXXIX, Rule 2(a) of the Code of Civil Procedure. The relevant facts, which have given rise to the controversy in issue, are as follows :

"In view of the withdrawal pursis Exh. 68, this suit stands disposed of for want of prosecution. Issue court fee refund certificate as per rules."

7. The present non-applicants (legal heirs of original defendant No. 3 deceased Pralhad Akre) filed Regular Darkhast No. 25/1995 for issuance of warrant of possession against the applicants. The executing Court issued notice to the applicants, who were parties to the execution proceedings. The applicants submitted their reply/objection. The trial Court after taking into consideration the contentions of the non-applicants as well as objections lodged by the applicants, passed the impugned order dated 15-3-1995 and issued warrant of possession against the applicants/original plaintiffs under Order XXI, Rule 32(1) read with Order XXXIX, Rule 2 (a) of Code of Civil Procedure. Being aggrieved by the same, the applicants/plaintiffs have moved the present revision.

11. It is contended by learned Counsel Shri Shukla that defendant No. 3 Pralhad filed an application for mandatory injunction under Order XXXIX, Rules 1 and 2 read with Section 151 of Code of Civil Procedure in Regular Civil Suit No. 2262/1992 against the applicants (Exh. 16) and the trial Court vide order dated 5-4-1993, allowed the application (Exh. 16) and directed the applicants to put defendant No. 3 Pralhad in possession of shop No. 26 and the present applicants (original plaintiffs) were temporarily restrained from interfering with possession of defendant No. 3. It is further contended that the order dated 5-4-1993 passed by the trial Court below Exh. 16 is conclusive in nature and an executable order under section 36 of Code of Civil Procedure and hence, executing Court was justified in passing the impugned order dated 15-3-1995 in Regular Darkhast No. 25/1995.

13. It is further contended by learned Counsel Shri Shukla that the applicants should not be allowed to blow hot and cold at the same time. The applicants had filed the regular civil suit for declaration and injunction. The trial Court rejected the application moved by the applicants for grant of temporary injunction and allowed the application for temporary injunction filed by the defendant No. 3 Pralhad and also directed for restoration of possession of the suit shop to the defendant No. 3. The applicants/plaintiffs at that stage with malafide intention filed a pursis for withdrawal of suit in order to defeat the order dated 5-4-1993 passed by the trial Court below Exh. 16 and suit was accordingly disposed of for want of prosecution vide order dated 25-1-1995. However, rights accrued to the non-applicants in view of order dated 5-4-1993 are executable and, therefore, non-applicants filed Regular Darkhast No. 25/1995. According to the learned Counsel, the impugned order is sustainable in law. In order to substantiate the contentions, reliance is placed by the learned Counsel on the judgments in Venkat Niloba Kabade v. Kishan Dadarao Dhumal, 1983 Mh.LJ. 1105, Bandakayala Abdul Rajack and Ors. v. Vastad Abdul Latheef, and Suresh D. Naik and Anr. v. Manguesh R. Wagle and Anr., 2000(4) Mh.LJ. 157.