NAKUL NAIK Vs. ANANT BABAL NAIK
LAWS(BOM)-2016-4-236
HIGH COURT OF BOMBAY
Decided on April 26,2016

Nakul Naik Appellant
VERSUS
Anant Babal Naik Respondents

JUDGEMENT

- (1.) Rule. Rule made returnable forthwith. The learned counsel for the respondent waives service. Heard finally by consent of the parties.
(2.) The petitioner, who is the judgment debtor is challenging the order dated 23/7/2015 passed by the learned Civil Judge, Junior Division, Pernem in Regular Execution Application No.3/2013, by which the Executing Court has refused to entertain the objection raised by the petitioner to the execution of the decree and has directed the execution of the same.
(3.) The brief facts are that the respondent had filed Regular Civil Suit No.38/2005 against the petitioners for removal of encroachment, as set out in para 8 of the plaint. The suit came to be decreed on 27/4/2012 and the same is confirmed by the first Appellate Court as well as by this Court in Second Appeal No.44/2014 by judgment and order dated 26/6/2014. Thereafter, the respondent sought execution of the decree in which the petitioners raised an objection. It was contended that although para 8 of the plaint (where the encroached portion is described) makes a reference to the plan drawn by one Zilba Naik, he was not examined before the trial court. It was contended that instead an engineer i.e. PW.3, Madadev Tuenkar was examined, who had prepared a plan which was exhibited at Exhibit 50 (colly). The contention is that, in the absence of examination of Zilba Naik, the decree which directs the removal of the encroachment as described in para 8 of the plaint, would be inexecutable as the encroachment is not properly identified.;


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