BABAN GENBA KALBHOR Vs. AMBARINATH TEMPLE ENDOWMENT TRUST

JUDGEMENT

(1.) HEARD both sides. The issue that arises for consideration in the present writ petition is that whether the Court below was justified in dismissing the application taken out by the petitioner whereby the petitioner wanted to raise an issue that the decree passed by the Court was a nullity. The Court below by the impugned order rejected the petitioners said plea by relying on the decision of the Apex Court in (A. I. R. 1970 S. C. 1475)

(2.) MR. Sali, appearing for the petitioner, strenuously contended that though the petitioner had not raised the issue of jurisdiction of the Civil Court in the context of provisions of the Bombay Public Trust Act in the appeal that was filed against the decree, however, it was still open to the petitioner to raise the said question when the said decree was sought to be executed against the petitioner. According to him, if the decree passed by the Civil Court is nullity on any count that issue could be raised even at the time of execution even though the same was not raised in the appeal that was filed against the said decree. In support of this submission he relies on decisions reported in the cases of (Kiran Singh and others v. Chaman Paswan and others), A. I. R. 1954 S. C. 340 and (Ajudh Raj and others v. Moti s/o Mussadi), A. I. R. 1991 S. C. 1600.

(3.) ON the other hand Mr. Shah contends that the petitioner having failed to raise the question of jurisdiction, which is now pressed into service, in the appeal that was filed against the decree and allowed the decree to attain finality, it is not open for the petitioner to agitate the said ground at the stage of execution of the said decree. In support of this contention Mr. Shah places reliance on the decision of the decision of the Apex Court reported in the case of (P. K. Vijayan v. Kamalakshi Amma and others), A. I. R. 1994 S. C. 2145 as well as decision of this Court reported in the case of (Vidarbha Kshatriya Mali Shikshan Sanstha v. Mahatma Fuley Shikshan Samiti, Amravati), 1986 Mh. L. J. 773 and in the case of (Leelavati w/o Vasantrao Pingle and others v. Dattatraya Dhondiraji Kavishar and others), 1988 (2) Bom. C. R. 429.