1 923-WP.11617-26.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 923 WRIT PETITION NO. 11617 OF 2026 NANDKUMAR SHANKARRAO RASNE VERSUS JAMNADAS PRABHUDAS BHAGWANI DIED THR LRS BAI JAMNADAS BHAGWANI AND ORS ... Advocate for the Petitioner : Mr. Jaju Nikhil Santosh. ... CORAM : MANJUSHA A. DESHPANDE, J. DATE : 02.09.2026 PER COURT :- 1. This writ petition has been filed by the petitioner, who is the judgment debtor in RCS No.890 of 2000 and the defendant in the suit for partition and separate possession of the property bearing house No.2542, CTS No.3349, situated at M. G. Road, Ahmednagar. The petitioner is aggrieved by the order dated 03.08.2026, passed by the Civil Judge Senior Division in Special Darkhast No.72 of 2019, wherein the application of the petitioner below Exh.78 has been rejected. 2. Considering the issue raised by the petitioner, no notice is required to be issued in the present matter. It can be disposed of by an order that will not cause any prejudice to the respondents. 2 923-WP.11617-26.odt 3. It is the contention of the petitioner that pursuant to the liberty granted by this Court in Writ Petition No.8561 of 2026 vide order dated 27.07.2026, he has filed the application Exh.78. This Court while passing the order in the aforementioned writ petition has recorded the submissions of the petitioner that the execution of decree in terms of order passed by the Executing Court may not be possible for handing over possession, which falls to the share of respondent Nos.1A to 1D as it may require removal of walls. It would not be possible to remove walls and structure without causing damage to the entire property. After recording the submissions of the petitioner, this Court has passed an order granting liberty to the petitioner to raise objection to the executability of decree on account of aforesaid difficulty. Pursuant to the liberty granted by this Court, the petitioner has filed the application below Exh.78 under Section 2 of the Partition Act, 1893. It is the contention of the petitioner that, if the decree is executed in respect of 15 x 4 of small portion, which is required to be handed over to the decree holder, there is likelihood of causing destruction to the property as it would require removal of walls. In the alternative, the request is made by the petitioner that in view of Section 3 of the Partition Act, the rights of the aforementioned portion, which is in his possession should be 3 923-WP.11617-26.odt fixed and it can be handed over to the decree holder. If the decree holder is ready to accept such compensation in lieu of the portion of land which is to be handed over. Admittedly, there is no say filed by the decree holder on his application dated 03.08.2026 and order is passed by the executing Court on 14.08.2026 rejecting the application of the petitioner holding that, it is not possible to entertain the application of the petitioner at this stage and it can be only ascertained after the possession warrant is issued. In my view, the question raised in the application at Exh.78 can be resolved if the Court Commissioner is appointed to ascertain the grounds raised by the petitioner in his application and also after taking into consideration the ‘say’ of the contesting respondent i.e. the decree holder. Thus, the executing court may appoint the Court Commissioner to ascertain the grounds raised by the petitioner in his application about executability of the portion which is required to be handed over, in respect of the portion admeasuring 15 x 4 feet. 4. In the result, the Writ Petition is allowed and the impugned order is set aside by directing the Executing Court to appoint a Court Commissioner to ascertain the actual position 4 923-WP.11617-26.odt on the site and thereafter passed appropriate orders on receiving the report of the Court Commissioner. 5. Writ petition stands disposed of in the aforementioned terms. (MANJUSHA A. DESHPANDE, J.) ... vmk/-