VASANT MARUTI MORE (SINCE DECEASED THROUGH LEGAL LRS )versusISHWARA JOTI MORE

2026:BHC-KOL:5084




                                               1                         906 wp 17661.24

                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIRCUIT BENCH AT KOLHAPUR
                                CIVIL APPELLATE JURISDICTION

                                 WRIT PETITION NO. 17661 OF 2024

                           Vasant Maruti More
                           (Since Deceased Through his Legal
                           Lrs ) Smt. Alka Vasant More and others ..     Petitioners

                                Versus

                           Ishwara Joti More                        ..   Respondent

                    Shri Kuldeep U. Nikam, Advocate a/w Shri Rushikesh S. Desai,
                    Advocate for the Petitioners.
                    Shri Prajakt M. Arjunwadkar, Advocate a/w Shri Ritesh R. Raut
                    and Shri Chinar S. Sankpal, Advocates for the Respondent.

                                      CORAM : SHAILESH P. BRAHME, J.
                                       DATE : 02ND JULY, 2026.

                    FINAL ORDER :


                    .      A preliminary objection has been raised by the learned
                    counsel appearing for the respondent that there is remedy of
                    appeal as per Order XXI Rule 103 of the Code of Civil Procedure
                    (for the sake of brevity and convenience hereinafter referred as to
                    the “C. P. C.”). My attention is adverted to application Exh. 99,
                    which does not spell out any specific provision and it is contended
                    that it is preferred and entertained U/O XXI Rule 97 r/w Rule 98
                    and 103 of the C. P. C.


                    2.     Learned   counsel   for   the   respondent    submits   that
                    considering the impugned order the right and interest of the
                           2                          906 wp 17661.24

petitioners is decided by the Executing Court, which amounts to
decree and the writ petition is not tenable.          It is further
submitted that in view of powers of the Executing Court under
Order XXI Rule 98(1)(a) of the C. P. C. regarding restoration of
the possession the recourse to Sec. 47 is misconceived.


3.    Per contra, learned counsel for the petitioners while
repelling the preliminary objection would advert my attention to
Sec. 47 as well as to Sec. 2(2) of the C. P. C. It is submitted that
it is permissible for the Executing Court to deal with questions
under purview of Sec. 47 and order passed therein is not
susceptible to the appeal. It is submitted that under the garb of
decree of possession the portion in the occupation of the
petitioners has been grabbed.


4.    Undisputedly, the petitioners are unsuccessful before all
the Courts. The respondent is armed with decree of possession
which is sought to be executed in R. D. No. 27 of 2010. The
possession is secured and thereafter application Exhibit 99 is
take out by the petitioners for restoration of the possession.
Pertinently, application Exhibit 99 does not spell out any the
provision.


5.    If the impugned order is treated to have been passed U/O
XXI Rule 97 of the C. P. C., then there is no alternative than to
hold that it is susceptible to appeal as per Rule 103 of the C. P. C.
Rule 98 of the C. P. C. empowers the Executing Court to
                           3                          906 wp 17661.24

adjudicate the rival claims and to grant relief as per Sub clause
(a) and (b), including relief of restoration. The scope of an inquiry
of the Executing Court is provided by Rule 101 of Order XXI of
the C. P. C.


6.    In the case at hand the entitlement of the petitioners to
execute the decree of possession is not in dispute. The decree is
confirmed upto the High Court. But the manner in which it is
being executed is stated to be objectionable. The purport of the
application is that under the garb of decree of possession qua suit
property, which is described in para No. 1B of the plaint i. e. CTS
No. 2422 admeasuring 39 x 21 feet and more area towards
Northern side has been acquired.       Without conducting proper
measurement and exact location of the area, the execution has
been carried.


7.    It is open for the Executing Court U/Sec. 47 of the C. P. C.
to determine all questions between the parties relating to
execution, discharge or satisfaction of the decree.     I am of the
considered view that the objection raised by the petitioners vide
application Exhibit 99 would squarely covered by Sec. 47 of the C.
P. C. which is regarding execution and discharge or satisfaction of
the decree. It is not case that third party is in possession of the
suit property.    The decree holder is not obstructed while
executing the decree so as to invoke Order XXI Rule 97 of the C.
P. C. Impugned order is passed U/Sec. 47 of the C. P. C. and for
which no appeal is provided and hence writ petition is
                          4                          906 wp 17661.24

maintainable. The preliminary objection is over ruled.


8.    After hearing the learned counsel for the parties for some
time, when this Court expressed disinclination to grant any relief
to the petitioners, learned counsel for the petitioners on
instructions of the petitioners seeks leave to withdraw the writ
petition to explore the remedy available as is permissible in law.


9.    The writ petition is disposed of as withdrawn with liberty
to avail the remedy as is permissible in law.



                              [ SHAILESH P. BRAHME J. ]


bsb/July 26