Bombay High Court
NANDKUMAR SHANKARRAO RASNEversusJAMNADAS PRABHUDAS BHAGWANI DIED THR LRS BAI JAMNADAS BHAGWANI AND ORS
- Disposal
- DISPOSED OFF
Holding
The High Court ordered the executing court to appoint a Court Commissioner to ascertain the actual position on the site and pass appropriate orders, setting aside the impugned order.
Summary
The petitioner, a judgment debtor, filed a writ petition challenging a civil court order that rejected his application under Section 2 of the Partition Act, 1893, seeking relief from execution of a decree that would require removal of walls and cause damage to the property. He argued that executing the decree for a 15 × 4 ft portion would destroy the structure and alternatively sought compensation under Section 3 of the Partition Act. The High Court noted that the petitioner had previously been granted liberty in Writ Petition No. 8561 of 2026 to raise objections to executability. The Court held that the matter could be resolved by appointing a Court Commissioner to ascertain the facts and consider the decree holder’s position. Accordingly, the writ petition was allowed, the impugned order set aside, and the executing court directed to appoint a Court Commissioner and pass appropriate orders based on the report.
Issues considered
- Whether the execution of the decree requiring removal of walls can be ordered without causing damage to the property.
- Whether the petitioner may be granted relief under Section 2 or Section 3 of the Partition Act, 1893, in lieu of physical execution.
- Whether a Court Commissioner can be appointed to ascertain the grounds and advise the executing court.
Legislation cited
- Partition Act, 1893 — s. 2, 3
Subjects
- Partition Act
- Section 2
- Section 3
- execution of decree
- property damage
- Court Commissioner
- writ petition
- civil court order
Judgment
1 923-WP.11617-26.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
923 WRIT PETITION NO. 11617 OF 2026
NANDKUMAR SHANKARRAO RASNE
VERSUS
JAMNADAS PRABHUDAS BHAGWANI DIED THR LRS BAI
JAMNADAS BHAGWANI AND ORS
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Advocate for the Petitioner : Mr. Jaju Nikhil Santosh.
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CORAM : MANJUSHA A. DESHPANDE, J.
DATE : 02.09.2026
PER COURT :-
1. This writ petition has been filed by the petitioner, who is
the judgment debtor in RCS No.890 of 2000 and the defendant
in the suit for partition and separate possession of the property
bearing house No.2542, CTS No.3349, situated at M. G. Road,
Ahmednagar. The petitioner is aggrieved by the order dated
03.08.2026, passed by the Civil Judge Senior Division in
Special Darkhast No.72 of 2019, wherein the application of the
petitioner below Exh.78 has been rejected.
2. Considering the issue raised by the petitioner, no notice
is required to be issued in the present matter. It can be
disposed of by an order that will not cause any prejudice to the
respondents.
2 923-WP.11617-26.odt
3. It is the contention of the petitioner that pursuant to the
liberty granted by this Court in Writ Petition No.8561 of 2026
vide order dated 27.07.2026, he has filed the application
Exh.78. This Court while passing the order in the
aforementioned writ petition has recorded the submissions of
the petitioner that the execution of decree in terms of order
passed by the Executing Court may not be possible for handing
over possession, which falls to the share of respondent Nos.1A
to 1D as it may require removal of walls. It would not be
possible to remove walls and structure without causing damage
to the entire property. After recording the submissions of the
petitioner, this Court has passed an order granting liberty to
the petitioner to raise objection to the executability of decree
on account of aforesaid difficulty. Pursuant to the liberty
granted by this Court, the petitioner has filed the application
below Exh.78 under Section 2 of the Partition Act, 1893. It is
the contention of the petitioner that, if the decree is executed
in respect of 15 x 4 of small portion, which is required to be
handed over to the decree holder, there is likelihood of causing
destruction to the property as it would require removal of
walls. In the alternative, the request is made by the petitioner
that in view of Section 3 of the Partition Act, the rights of the
aforementioned portion, which is in his possession should be
3 923-WP.11617-26.odt
fixed and it can be handed over to the decree holder. If the
decree holder is ready to accept such compensation in lieu of
the portion of land which is to be handed over. Admittedly,
there is no say filed by the decree holder on his application
dated 03.08.2026 and order is passed by the executing Court
on 14.08.2026 rejecting the application of the petitioner
holding that, it is not possible to entertain the application of
the petitioner at this stage and it can be only ascertained after
the possession warrant is issued. In my view, the question
raised in the application at Exh.78 can be resolved if the Court
Commissioner is appointed to ascertain the grounds raised by
the petitioner in his application and also after taking into
consideration the ‘say’ of the contesting respondent i.e. the
decree holder. Thus, the executing court may appoint the Court
Commissioner to ascertain the grounds raised by the petitioner
in his application about executability of the portion which is
required to be handed over, in respect of the portion
admeasuring 15 x 4 feet.
4. In the result, the Writ Petition is allowed and the
impugned order is set aside by directing the Executing Court to
appoint a Court Commissioner to ascertain the actual position
4 923-WP.11617-26.odt
on the site and thereafter passed appropriate orders on
receiving the report of the Court Commissioner.
5. Writ petition stands disposed of in the aforementioned
terms.
(MANJUSHA A. DESHPANDE, J.)
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