Bombay High Court

NANDKUMAR SHANKARRAO RASNEversusJAMNADAS PRABHUDAS BHAGWANI DIED THR LRS BAI JAMNADAS BHAGAWANI AND ORS

Disposal: DISPOSED OFF
Bench: S G CHAPALGAONKAR

Holding

The objection to execution should have been raised before the executing court; the petition is dismissed but the petitioner may now raise the objection in the executing court.

Summary

The petitioner challenged a civil court order that issued a possession warrant in favor of respondents 1‑A to 1‑D, arguing that handing over the smaller share would require demolition of walls and cause damage to the whole property. The High Court observed that such an objection could and should have been raised before the executing court, and the record showed no prior objection. Consequently, the Court held that the petition could not be entertained on that ground. However, the Court granted the petitioner liberty to raise the objection regarding executability in the executing court, which must then consider it on its merits. The writ petition was therefore disposed of.

Issues considered

Whether the petitioner may raise an objection to the execution of a decree after the possession warrant has been issued
Whether the physical difficulties in handing over the share render the decree non‑executable

Subjects

writ petition
execution of decree
possession warrant
civil procedure
objection to execution
property dispute

Judgment

2026:BHC-AUG:31410
                                                  -1-
                                                                         64-WP-8561-2026

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                                 WRIT PETITION NO. 8561 OF 2026

                           NANDKUMAR SHANKARRAO RASNE
                                     VERSUS
               JAMNADAS PRABHUDAS BHAGWANI DIED THR LRS BAI JAMNADAS
                              BHAGAWANI AND OTHERS

                                                  ......
              Advocate for the Petitioner : Mr. Nikhil Santosh Jaju
                                                 ...…

                                            CORAM : S. G. CHAPALGAONKAR, J.
                                             DATED : 27th JULY, 2026
              PER COURT :

              1.          The present writ petition takes exception to order dated

              23.02.2026 passed by Civil Judge Senior Division, Ahmednagar below

              Exh.53 in Special Darkhast No. 72 of 2019, thereby issuing possession

              warrant in favour of respondent nos.1-A to 1-D.



              2.          Mr. Jaju, learned Advocate appearing for petitioner submits

              that execution of decree in terms of order passed by Executing Court may

              not be possible as handing over possession of smaller area which is falling

              to the share of respondents 1-A to 1-D would be difficult, because it

              would require removal of walls and old structures, causing damage to

              entire property.
                                    -2-
                                                           64-WP-8561-2026

3.          This Court finds that aforesaid objection could have raised by

petitioner before Executing Court. The record does not depict that any

sort of objection to execution of decree in terms of Commissioner's report

was ever raised before Executing Court.



4.          In this backdrop, writ petition stands disposed of with liberty

in favour of petitioner to raise objection as to executability of decree on

account of aforesaid difficulties. If such an objection is raised, the

Executing Court shall consider it on its own merits.



                                           (S. G. CHAPALGAONKAR)
                                                    JUDGE




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