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2016 DIGILAW 206 (BOM)

Anand Ganpat Parab v. Laxman Shiva Parab

2016-02-01

S.B.SHUKRE

body2016
JUDGMENT : Heard. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2. The objections raised by learned Counsel for the petitioners give rise to two questions: one, whether in the execution proceeding, the executing Court has jurisdiction to pass an order in the nature of temporary injunction invoking provision of Section 151 of C.P.C. and second whether the executing Court while serving notice of the application filed under Section 51 of C.P.C. to the petitioners ought to have served the notice of main execution proceeding and without serving the notice of main execution proceeding, ought not to have proceeded with passing of any order under Section 151 of C.P.C. 3. These objections can also be taken before the Executing Court as the order impugned herein is not the final order. Therefore if a direction is issued to the executing Court to hear and consider the above referred objections while disposing of the application (Exhibit-6) should suffice the purposes of this petition. 4. It is noted that the learned Counsel for the legal heirs of respondent no. 1 has delivered a copy of the execution application to the learned Counsel for the petitioners, which has been accepted on behalf of the judgment debtors by the learned Counsel for the petitioners as service of main execution proceeding. 5. In the circumstances, it is directed that the above referred objections shall be considered and decided appropriately by the Executing Court while finally disposing of the application (Exhibit-6) filed under Section 151 of C.P.C., which application shall be disposed of within three weeks from the date of the order. 6. Writ Petition is allowed in these terms. No costs.