SAYYAD SHAHALIPASHA S/O SAYYAD AHMAD PASHA BASHIBAN INAMDAR Vs. SAYYAD UMMPASHA S/O SAYYAD SAHAB PASHA BASHIBAN INAMDAR SINCE DECEASED BY HIS L.RS SULEMAN TRUSTEE SAYYAD SHAHAHUSSAIN PASHA S/O SAYYAD UMARPASHA BASHINBAN INAMDAR, SAYYAD AFTABPASH

JUDGEMENT

(1.) THIS revision petition is preferred by the petitioner challenging the order passed by II Addl. Civil Judge (Jr.Dn) & JMFC, Belgaum, issuing arrest warrant to him and to another, to detain in civil prison for a period of two months, if subsistence allowance paid by Decree Holders.

(2.) RESPONDENTS -1 and 2 filed a suit in O.S. No. 871/88 for a decree of permanent injunction restraining the petitioner and the third respondent from alienating, leasing or creating any charge over the trust property bearing CTS No. 3294 and for directions to the third respondent to remove the erected structure in the portion of the trust property. The suit was decreed after contest en 25.07.1995, The said judgment and decree was challenged in RA 129/95, which appeal came to be dismissed affirming the judgment and decree of the trial Court, The said decree has become final. In spite of the said decree, the defendants -judgment debtors disobeyed the order of the mandatory injunction. Therefore, the plaintiff -decree holders filed Execution No. 653/07 for arrest and detention of the judgment debtors. On the execution side, notice was served on both the judgment debtors. The third respondent -second judgment debtor remained absent. He was placed ex parte. The petitioner -first judgment debtor appeared through Counsel, but filed no objections. Decree holder was examined as P.W -1. He produced Ex.P -1 to P -9 to substantiate his case of disobedience, No evidence was adduced on behalf of judgment debtors. Learned Counsel appearing for both the parties addressed arguments. The contention urged at the time of argument by the judgment debtor was that on the date the decree was passed in appeal, on the date the execution petition was filed, the Court which bad passed the decree and the Court which was executing the decree had no jurisdiction. Therefore, the decree is not executable, It is their contention that with the passing of Wakf Act, 1995, the jurisdiction of the Civil Court is taken away,

(3.) SRI , C.R. Patil, learned Counsel appearing for the petitioner assailing the impugned order contends that the question urged is purely a question of law. If a decree is passed by the Court which has no jurisdiction, it is a nullity. Such an objection can be taken even on the execution side without filing objections. Therefore on the ground that objections are not filed, evidence is not adduced, the trial Court was not justified in rejecting the said plea.