1 906 wp 17661.24 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIRCUIT BENCH AT KOLHAPUR CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 17661 OF 2024 Vasant Maruti More (Since Deceased Through his Legal Lrs ) Smt. Alka Vasant More and others .. Petitioners Versus Ishwara Joti More .. Respondent Shri Kuldeep U. Nikam, Advocate a/w Shri Rushikesh S. Desai, Advocate for the Petitioners. Shri Prajakt M. Arjunwadkar, Advocate a/w Shri Ritesh R. Raut and Shri Chinar S. Sankpal, Advocates for the Respondent. CORAM : SHAILESH P. BRAHME, J. DATE : 02ND JULY, 2026. FINAL ORDER : . A preliminary objection has been raised by the learned counsel appearing for the respondent that there is remedy of appeal as per Order XXI Rule 103 of the Code of Civil Procedure (for the sake of brevity and convenience hereinafter referred as to the “C. P. C.”). My attention is adverted to application Exh. 99, which does not spell out any specific provision and it is contended that it is preferred and entertained U/O XXI Rule 97 r/w Rule 98 and 103 of the C. P. C. 2. Learned counsel for the respondent submits that considering the impugned order the right and interest of the 2026:BHC-KOL:5084 2 906 wp 17661.24 petitioners is decided by the Executing Court, which amounts to decree and the writ petition is not tenable. It is further submitted that in view of powers of the Executing Court under Order XXI Rule 98(1)(a) of the C. P. C. regarding restoration of the possession the recourse to Sec. 47 is misconceived. 3. Per contra, learned counsel for the petitioners while repelling the preliminary objection would advert my attention to Sec. 47 as well as to Sec. 2(2) of the C. P. C. It is submitted that it is permissible for the Executing Court to deal with questions under purview of Sec. 47 and order passed therein is not susceptible to the appeal. It is submitted that under the garb of decree of possession the portion in the occupation of the petitioners has been grabbed. 4. Undisputedly, the petitioners are unsuccessful before all the Courts. The respondent is armed with decree of possession which is sought to be executed in R. D. No. 27 of 2010. The possession is secured and thereafter application Exhibit 99 is take out by the petitioners for restoration of the possession. Pertinently, application Exhibit 99 does not spell out any the provision. 5. If the impugned order is treated to have been passed U/O XXI Rule 97 of the C. P. C., then there is no alternative than to hold that it is susceptible to appeal as per Rule 103 of the C. P. C. Rule 98 of the C. P. C. empowers the Executing Court to 3 906 wp 17661.24 adjudicate the rival claims and to grant relief as per Sub clause (a) and (b), including relief of restoration. The scope of an inquiry of the Executing Court is provided by Rule 101 of Order XXI of the C. P. C. 6. In the case at hand the entitlement of the petitioners to execute the decree of possession is not in dispute. The decree is confirmed upto the High Court. But the manner in which it is being executed is stated to be objectionable. The purport of the application is that under the garb of decree of possession qua suit property, which is described in para No. 1B of the plaint i. e. CTS No. 2422 admeasuring 39 x 21 feet and more area towards Northern side has been acquired. Without conducting proper measurement and exact location of the area, the execution has been carried. 7. It is open for the Executing Court U/Sec. 47 of the C. P. C. to determine all questions between the parties relating to execution, discharge or satisfaction of the decree. I am of the considered view that the objection raised by the petitioners vide application Exhibit 99 would squarely covered by Sec. 47 of the C. P. C. which is regarding execution and discharge or satisfaction of the decree. It is not case that third party is in possession of the suit property. The decree holder is not obstructed while executing the decree so as to invoke Order XXI Rule 97 of the C. P. C. Impugned order is passed U/Sec. 47 of the C. P. C. and for which no appeal is provided and hence writ petition is 4 906 wp 17661.24 maintainable. The preliminary objection is over ruled. 8. After hearing the learned counsel for the parties for some time, when this Court expressed disinclination to grant any relief to the petitioners, learned counsel for the petitioners on instructions of the petitioners seeks leave to withdraw the writ petition to explore the remedy available as is permissible in law. 9. The writ petition is disposed of as withdrawn with liberty to avail the remedy as is permissible in law. [ SHAILESH P. BRAHME J. ] bsb/July 26