Writ Petition No. 1536 of 2022 · Bombay High Court
Case at a glance
- Bench
- R M JOSHI
Outcome
Set aside
The impugned order, therefore, is set aside
Provisions considered
- Code of Civil Procedure, 1908 O. 26 r. 9
Key paragraphs
- Para 55. The impugned order, therefore, is set aside. Needless to say that the observations made herein above would not preclude any party to take appropriate stage in accordance with law.
Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 1536 OF 2022ABHIMAN MAROTI DOIFODEVERSUSBHIMRAO VITHOBA MUNDEMr. A. L. Kanade, Advocate for the petitioner Mr. R. V. Gore, Advocate for respondentCORAM: R. M. JOSHI, J.DATE: 27th JUNE, 2024PER COURT :-
The judgment debtor in Regular Darkhast No. 183 of 2012takes exception to the impugned order dated 06/12/2021 passed belowExhibit 47 whereby the Court has appointed T.I.L.R., Beed as CourtCommissioner to measure the suit property as well as gut No. 288 atvilllage Doifodwadi, Taluka and District Beed.
Learned counsel for the petitioner submits that the ExecutionCourt has committed error in allowing the said application withoutDecree Holder leading any evidence to indicate that the boundaries of the suit properties are changed. It is submitted that previous two applications filed below Exhibits 31 and 41 before the Execution Courtwere rejected on this ground, which orders were upheld by this Court. Itis thus his contention that in absence of any evidence being shown by decree holder regarding change in the boundaries, the order of appointment of Court Commissioner to measure the suit property is not923.wp15366.22.odt1 of 2 justified.
Learned counsel for the respondent/decree holder submits that owing to the difficulties as disclosed in the application, decree holder could not lead evidence but having regard to the peculiarity of the fact of the case, the order impugned need not be interfered with.
Perusal of orders passed below Exhibits 31 and 41 clearly shows that the Execution Court has refused to exercise the powers under Order 26 Rule 9 of the Code of Civil Procedure for appointment of CourtCommissioner with observation that the decree holder has failed to show any evidence indicating change in the boundaries as claimed by him though orders have attained finality. In such circumstances, it was not open for learned Execution Court to pass order of appointment of CourtCommissioner unless finding is recorded that the decree holder has led evidence to show the changes in the boundaries of the property proper in question.
Operative part
The impugned order, therefore, is set aside. Needless to say that the observations made herein above would not preclude any party to take appropriate stage in accordance with law.
Petition stands disposed off. (R. M. JOSHI, J.)ssp923.wp15366.22.odt2 of 2
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: The impugned order, therefore, is set aside
Which statutory provisions did this judgment involve?
Code of Civil Procedure, 1908 — O. 26 r. 9.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.