IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1329 OF 2024 Maheboob Khan Muzaffer Khan Deceased Through Lrs Siraj Ahemad Khan Maheboob Khan And Others VERSUS Aziz Ahemad Khan Died Thr Lrs Anisa Begum Aziz Khan Died Thr Lrs Kalim Ahmad Khan Aziz Khan Others Mr. A. A. Mukhedkar, Advocate for Petitioners Mr. V. T. Pathan h/f Mr. T. W. Pathan, Advocate for Respondent Nos. 1/A, 1/C, 1/D, 1/E CORAM : R. M. JOSHI, J. DATE : 13th March, 2025 PER COURT :- 1. This petition takes exception to the order dated 07.11.2023 passed below Exhibit 27 in Special Darkhast No. 10/2018. 2. Respondents/decree holders filed application below Exhibit 22 with following prayer “ That, petition for appointment of commissioner for inspection and submitting report of suit property house property no. 7-1-110 situated at Itwara Bazar, Jawari line, opposite Dr. Khadri’s Hospital, Nanded, may kindly be allowed by directing the Commissioner Municipal Corporation Nanded, to inspect the suit property through his subordinate Civil Engineer on record and submit the report about present condition of suit property and oblige.” On this application, learned Trial Court passed following order :- 1- dk;Zdkjh vfHk;ark] lkoZtfud cka/kdke foHkkx ukansM ;kauk 939-WP-1329-2024.odt 1 of 3 2025:BHC-AUG:7639 U;k;ky;hu vk;qDr Eg.kqu use.kqd ;srs- R;kauk vkns’khr dj.;kr ;srs dh] R;kauh gqdweukE;kr uewn dsy;kizek.ks ljl fujl ekukus okn feGdrhps okVi djkos o R;kckcrpk vgoky fn-16 tkusokjh 2024 ikosrks U;k;ky;kr lknj djkok- 2- U;k;ky;hu vk;qDrkaph Qh oknhus Hkjk;kph vkgs- oknhyk vkns’khr dj.;kr ;srs dh] R;kiksVh R;kus #- 5000@& rkcMrksc U;k;ky;kr Hkjkos o vf/kdkjh Qh ykxy;kl rh Hkjk;yk r;kj vly;kckcr gehi= lknj djkos- 3- U;k;ky;hu vk;qDr ;kauk ;kckcrps i= ikBo.;kr ;kos- 3. Learned counsel for petitioners/judgment debtors submits that the Execution Court has passed order beyond prayers made by the decree holders. It is his contention that such order is not sustainable in the eyes of law as the petitioners were denied any opportunity to meet such eventuality. 4. Learned counsel for Respondents sought to support the said order by referring to the application as well as panchnama drawn persuant to the order impugned. 5. As recorded herein above, application Exhibit 22 came to be filed for limited prayer for appointment of the Commissioner for inspection of the suit property bearing No. 7-1-110 situated at Itwara Bazar, Jawari line, opposite Dr. Khadri’s Hospital, Nanded and to ascertain the condition of the suit property. Perusal of the application 939-WP-1329-2024.odt 2 of 3 indicates that it is contention of the decree holders that said property is in dilapidated condition. Thus the application is only for limited purpose of appointment of Court Commissioner to ascertain the condition of the property. Learned Execution Court however proceeded to direct partition of the property. 6. Since, such prayer was not made before the Execution Court, the petitioners/judgment debtors did not get any opportunity to meet the same. Hence, on this ground itself, the order impugned cannot sustain. As a result of the above discussion impugned order is set aside. Application Exhibit 27 is relegated back to the Execution Court for decision afresh in accordance with law. (R. M. JOSHI, J.) bsj 939-WP-1329-2024.odt 3 of 3