SOMASHEKAR D PATIL Vs. D S PATIL

JUDGEMENT

(1.) The petitioner herein is the judgment-debtor in Ex. Petn. No. 1700/2008. He is calling in question the order dated 7- 10-2009 as at Annexure- D to the petition. By the said order, the Executing Court has rejected the application filed by the petitioner herein to recall the delivery warrant and has thereafter reissued the delivery warrant with liberty to break open the lock, if the premises is under lock. The respondents herein are the decree-holders.

(2.) The brief facts leading to the impugned order is that the petitioner herein who is the son of the first respondent and the brother of the second respondent had instituted a suit in O.S. No, 793/2004 against the respondents herein and also his mother Smt. Nagarathna Patil and sister Smt. Nirmala S. Patil. The suit is one for partition and separate possession of the suit schedule properties. In the said suit, the respondents herein who were the defendants filed an application in LA. No. 10 under Order 39, Rules 1 and 2 of CPC (hereinafter referred to as 'Code') seeking for an order of mandatory injunction to remove the plaintiff from the suit 'A' schedule property. The trial Court had dismissed the said application by its order dated 19-7-2008. The respondents were therefore before this Court in M.F.A. No.8071/2008 (CPC). This Court after detailed consideration, by its order dated 1-10-2008 allowed the appeal, set aside the impugned order of the trial Court and granted an order of ad-interim mandatory injunction for removal of the petitioner herein from possession of the plaint 'A' schedule property and restoration of status- quo ante as existed prior to 28-3-2007. Though the petitioner herein questioned the order before the Hon'ble Supreme Court, the Special Leave Petition was not entertained.

(3.) In that light, the order dated 1-10-2008 in M.F.A. No.8071/2008 being available for execution was put into execution by the respondents herein by filing the Ex. Petition in No. 1700/2008. At an earlier point, an Objector had claimed certain right with regard to the property and after consideration and disposal of the same, the delivery warrant to take possession of the property has been issued. In the meanwhile, the suit in O.S. No. 793/2004 itself came to be decree in part by the preliminary decree dated 19-9- 2009 whereby, the petitioner is also held entitled to one fourth share in the suit 'A' and 'B' schedule properties. It is in that context, the petitioner herein who is the judgment- debtor in the pending execution petition filed the application for recall of the delivery warrant which came to be rejected. The petitioner is therefore before this Court contending that the interim order of mandatory injunction granted is not available for execution since the main suit itself is now disposed of.