Baliram Babu Mane And Others v. Parwatibai Babasaheb Gaiwal And Others

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

BENCH AT AURANGABAD WRIT PETITION NO. 3262 OF 2016 Baliram s/o Babu Mane age 85 years, occ. Agriculture r/o Tadsonna, Tq. & dist. Beed Babu s/o Baliram Mane age 41 years, occ. Agriculture r/o Tadsonna, Tq. & Dist. Beed Babasaheb s/o Babu Mane age major, occ. Agriculture r/o Tadsonna, Tq. & Dist. Beed Rameshwar s/o Baliram Mane age major, occ. Agril r/o Tadsonna, Tq. & Dist. Beed .. PETITIONERS

VERSUS

Parwatibai w/o Babasaheb Gaikwal age major, occ. Agri & household r/o Nababpur, Tq. Wadwani Dist. Beed Achut s/o Vishwanath Mane age 59 years, occ. Agril r/o Tadsonna, Tq. & Dist. Beed Kausabai w/o Janikiram Pawade age major, occ. Agril r/o Pawade Hadgaon Tq. Sailu, Dist. Parbhani The District Collector, Beed Tq. & Dist. Beed The Tahsildar Beed Tq. & Dist. Beed The Circle Officer Pimpalner Division Tq. & Dist. Beed .. RESPONDENTS Mr. P.C. Mayure, advocate holding for Mr. S.R. Shirsat, advocate for petitioners.

Mr. S.R. Yadav Lonikar, AGP for respondents no. 4 to 6. Mr. V.B. Jadhav, advocate for respondent no. 3.

===== CORAM : S. B. SHUKRE, J.

DATE : 6th MARCH, 2017.

ORAL JUDGMENT :

1.

Rule. Rule made returnable forthwith.

2.

Heard finally by consent of learned counsel for the respective parties. 3.

Vide order passed on 14 th June, 2011, it appears that some changes have been made which apparently have an effect of modifying the decree. It is true as submitted by learned counsel for the respective parties that gat no. 77 has been sold out. It is also true that decree which has been passed on 19 th January, 2006 and which has been confirmed by this Court in second appeal, is required to be executed to an extent it is executable. If some part of the decree cannot be executed in terms of decree, an alternate way of executing the decree with the consent of the parties can also be considered by the learned Sub-Divisional Officer. But, without such consultation it may not be appropriate to make some alterations which would apparently have an effect to correct the decree.

If parties are agreeable to it, the learned Sub-Divisional Officer would be at liberty to execute the decree even by resolving the alternate way or otherwise, he shall be at liberty to execute the decree only to an extent it is executable. As regards unexecutable part of the decree, the matter should be certainly referred to the executing Court for obtaining appropriate order. 4.

In this view of the matter, the order dated 14 th June,2011 is quashed

and set aside and the matter is remitted back to the learned Sub-Divisional Officer for consideration afresh and issuing necessary directions to the Naib Tahsildar, Beed. Parties to appear before the learned Sub-Divisional Officer on 15 th March, 2017 at 11.00 am for reconsideration of the matter and its decision in accordance with law, keeping in view the observations made hereinabove. The matter shall be decided within one month from the date of appearance of the parties. The amount deposited here be transferred to the executing Court for appropriate consideration. Rule made absolute in above terms. No costs.

( S. B. SHUKRE ) JUDGE dyb