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Bombay High Court

SURESH RAJARAM MHATRE AND ORSversusSURESH RAJARAM GUPTA AND ORS

Decided
Disposal
Disposed Off

Holding

The Court dismissed the writ petition, holding that it would not entertain the challenge as the decree has been pending execution for fourteen years and the related petition had been withdrawn.

Summary

The petitioners, Suresh Rajaram Mhatre & Ors., challenged two orders dated 18 August 2026 issued by the Civil Judge, Bhayandar, which directed police assistance for executing a possession warrant and rejected an application to appoint a Court Commissioner. They argued that there was a serious issue regarding the identity of the flat subject to the decree, contending that the decree holder had sought but not been granted permission to amend the flat description from No.48‑B to No.404‑B. The petitioners also claimed the execution order was a one‑line order lacking reasons and that a related petition filed earlier had been withdrawn. The High Court noted that the earlier petition (WP(st)/22663/2019) was withdrawn and that the decree for possession had been pending execution for fourteen years, concluding that the petition could not be entertained. Consequently, the writ petition was dismissed, with a clarification that any future success in the pending proceeding would not be prejudiced by this order.

Issues considered

  • Whether the petitioners can challenge the execution order on the ground of lack of reasons and a one‑line order.
  • Whether an amendment to the description of the suit property is permissible after the decree has been passed.
  • Whether the writ petition is maintainable given the prior withdrawal of a related petition.

Subjects

  • execution of decree
  • possession warrant
  • amendment of property description
  • Civil Procedure Code
  • writ petition
  • police assistance
  • court commissioner
  • withdrawal of petition

Judgment

                                                                           32-WP-11773-2026.DOC

                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION

                                         WRIT PETITION NO. 11773 OF 2026


                      Suresh Rajaram Mhatre & Ors.                           ..Petitioners

                              Versus

                      Suresh Rajaram Gupta & Ors.                         …Respondents


                      Mr. Raju Suryawanshi, for the Petitioners.


                                                  CORAM :       N. J. JAMADAR, J.
                                                  DATE     : 29th SEPTEMBER 2026

                      Oral Order :-

                      1.      Heard the learned counsel for the petitioners.

                      2.      The challenge in this petition is to an order dated 18 th

                      August, 2026 passed by the learned Civil Judge, Mira-
SAINATH
SANJAY
BODKHE
                      Bhayandar, whereby Police aid was directed to be given for the
Digitally signed by
SAINATH SANJAY
BODKHE
Date: 2026.10.03
12:24:13 +0530

                      execution     of    possession   warrant     in   Regular    Darkhast

                      No.01/2026 (arising out of old Regular Darkhast No.348/2012),

                      and another order dated 18th August, 2026 whereby an

                      application preferred by the judgment debtor to appoint a Court

                      Commissioner to visit the building in which the suit flat is

                      situated and submit a report to the Court, came to be rejected.

                      3.      Mr. Suryawanshi, the learned Counsel for the petitioners,

                      submitted that there is a serious issue about the identity of the
                      SAINATH, PA                         1/3
                                                 32-WP-11773-2026.DOC

flat in respect of which the decree is passed in favour of the

decree holder. Attention of the Court was invited to an

application (Exh.33) preferred in Regular Darkhast No.348/2012

whereby the decree holder sought to amend the description of

the suit property furnished in clause 10 of the Darkhast

application so as to correct the Flat No.48-B to 404-B in

Rushabh Plaza building instead of Amit Varsha building. It was

submitted that, the Court had only permitted the decree holder

to bring the legal representatives on record by an order dated

26th October, 2018, and express permission for amendment to

correct the description of the suit property was not granted.

4.      It    is   pertinent   to   note,   a   petition,     being

WP(st)/22663/2019, assailing the said order was filed and, on

17th September, 2025, the said petition came to be disposed as

withdrawn. Thus, it is now not open for the petitioners to assail

the said order on the ground that, the Executing Court has not

ascribed reasons and had passed a one line order.

5.      In the impugned order dated 18th August, 2026 passed on

the application (Exh.46) preferred by the petitioners – judgment

debtors, in Paragraph No.13, the learned Judge has recorded

that, the execution proceeding was amended to describe the suit

property as Flat No.404.


SAINATH, PA                         2/3
                                                   32-WP-11773-2026.DOC

6.      In these circumstances, at this stage, since the decree for

delivery of possession of the subject flat has been awaiting

execution for 14 years, this Court is not inclined to entertain the

petition.

7.      The Writ Petition stands dismissed.

8.      It is clarified that, in case the petitioners succeed in the

pending proceeding, the petitioners can be appropriately

restituted, and the observations in this order will not be

construed against the petitioners while deciding the said

proceeding on its own merits and in accordance with law.



                                          [N. J. JAMADAR, J.]




SAINATH, PA                         3/3


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