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Bombay High CourtWP/1792/2015dismissedrule discharged

Pratap S/O Sadashiv Hadke v. Sau. Fulanbai Mahadeo Mahajan

2015-04-06Hon'Ble Shri Justice Ravi K. Deshpande2 pages

wp1792.15

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO.1792 OF 2015 PRATAP S/O SADASHIV HADKE V/S SAU. FULANBAI MAHADEO MAHAJAN Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders Shri S.R. Deshpande, counsel for the petitioner.

CORAM

: R. K. DESHPANDE, J.

DATE : APRIL 6, 2015 Heard Shri S.R. Deshpande, learned counsel for the petitioner.

The order impugned is passed on 10.3.2015 by the executing Court, in Regular Darkhast No.8 of 2012, rejecting objection raised by the judgment debtor to the executability of the decree. In paragraph No.9 of the order impugned the executing Court has held as under :

"I am of a view when the D.H. moves the Civil Court by filing an application in the nature of a request letter for sending the decree to the Collector.

Then such application not required judicial inquiry and execution will be disposed of immediate after sending the decree to the Collector. The Collector in effecting the partition and separate share performs a quasi judicial function and not a ministerial duty. He is bound to hear the parties .....2/-

wp1792.15 and considered their objections. The objection to the effect of measurement is to be raised before the Collector but in the said execution the judgment debtor has not raised the objection before the Collector and he has not satisfied the court as to why he has not raised the said objection before the Collector till date. Hence, I am of a view that the objection of J.D. is not maintainable. Hence, I am going to pass following order. ......."

A categorical finding is recorded by the executing Court that objection to the measurement report submitted by the Revenue Inspector was required to be raised before the Collector, but such objection was never raised to the measurement report. The Collector has accordingly submitted his final report to the executing Court on the basis of which the executing Court has directed issuance of warrant of possession. There is no ground raised in the petition that any such objection was raised before the Collector and the Collector has failed to consider such objection. In view of above, no interference is called for in the order impugned. The writ petition is dismissed.

JUDGE !! BRW !!

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