Bombay High Court

SHANTABAI SITARAM PHIRKE DECEASED THR LRS AND OTHERSversusVASUDEO ANANDA PATIL AND OTHERS

Disposal: DISPOSED OFF

Holding

Execution may only be effected against the property described in the decree, and the order rejecting the petitioners' objection to the erroneous description is set aside.

Summary

The petitioners challenged a Civil Judge's order that rejected their objection to the description of a property in an execution petition. The original decree in Civil Suit No. 38/1987 described the property as house no. 1059 in village Nhavi, whereas the execution petition described it as house no. 1059A, which belongs to the petitioners. The executing court refused to consider the objection, issuing a warrant for possession of house no. 1059A. The High Court held that execution must be limited to the property described in the decree and set aside the lower court's order, directing the plaintiff to correct the property description within two weeks and then seek a fresh execution order. The writ petition was consequently disposed.

Issues considered

Whether the execution proceedings can attach a property described differently from the decree.
Whether the objection to the erroneous description of the property should be entertained by the executing court.

Legislation cited

Code of Civil Procedure, 1908 — s. Order XXI Rule 35

Subjects

civil procedure
execution
property description
decree correction
Order XXI Rule 35
writ petition

Judgment

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                 WRIT PETITION NO. 6719 OF 2025
          SHANTABAI SITARAM PHIRKE DECEASED
                     THR LRS AND OTHERS
                              VERSUS
            VASUDEO ANANDA PATIL AND OTHERS
                                  ...
        Advocate for Petitioners : Mr. Imale Ramesh Ramdas
Advocate for Respondent Nos. 1 to 3 : Mr. Dattatraya Rambhau Markad
                                  …

                         CORAM : MANJUSHA DESHPANDE, J.
                         DATE : 24th AUGUST, 2026


PER COURT :

1.          The Petitioners are challenging the order dated 09.05.2025,

passed by the Civil Judge, Junior Division, Yawal, District Jalgaon, in

Regular Darkhast no. 58/2001, in which the objection raised by the

Petitioners in respect of the description of the property mentioned in the

execution petition which was wrongly described, has been rejected and

warrant under Order XXI Rule 35 of the Code of Civil Procedure, along

with police protection is issued for handing over the possession of the

house property no. 1059-A.

2.          It is submitted by the Petitioners that while passing decree in

Regular Civil Suit no. 38/1987, in respect of open land abutting house no.

1059, of village Nhavi, Taluka Yawal, District Jalgaon, decree in respect
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of the open plot mentions as house no. 1059 of village Nhavi. However,

in the execution proceedings, the decree holder has mentioned house

number as 1059 A of Village Nhavi, which belongs to the Petitioners and

the execution in respect of the same is under process.

3.           It is submitted that although he has raised the objection

about wrong description of the property, the executing Court has refused

to entertain the objection and rejected his Application. From the

documents placed on record, it is evident that in the decree in Regular

Civil Suit no. 38/1978, the description of property is stated to be open

plot of Gram Panchayat house no. 1059 of village Nhavi, while in the

Regular Darkhast no. 58/2001, the description of the property in clause

no. 10 mentions the Gram Panchayat house no. 1059 A and the land

abutting to it. This position is also not disputed by the learned Advocate

for the Respondents. However, he opposes the order passed in favour of

the Petitioners.

4.           Considering that the decree is passed in respect of house no.

1059 of village Nhavi, the decree is required to be executed in respect of

the same property no other property can be attached in the execution

proceedings. Hence, the order impugned passed by the Civil Judge,

Junior Division, is set aside and the Plaintiff directed to take steps to

correct the description of the property, upon making such correction
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further order shall be passed by executing Court i.e. the Civil Judge,

Junior Division, Yawal, District Jalgoan.

5.             The appropriate correction shall be carried out within a

period of two weeks, after which appropriate order shall be passed by the

executing Court, as permissible under law.

6.             With the aforementioned directions, the Writ Petition stands

disposed of.



                                      ( MANJUSHA DESHPANDE, J. )




SPC

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