MULJIBHAI LADHARAM PATEL Vs. MARIA F SOUZA AGUIAR

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception to the Order passed by the Civil Judge, Sr. Division, Ponda dated 30 6 2003 in Execution Application No 17/2002/A.

(2.) BRIEFLY stated, the respondent No.1 filed eviction proceedings against the petitioner and respondent No.2. The petitioner was defendant No.2 in the said eviction proceedings being Regular Civil Suit No.63/93, filed before the Court of the Civil Judge, Sr. Division, Ponda. During the pendency of the said suit, order came to be passed by the trial Court, striking of the defence of the petitioner on the grounds stated therein. That order was made subject-matter of challenge right upto the Apex Court being S.L.P.(Civil) No.13945/1995. However, the same was confirmed. In other words, the defence of the petitioner was struck of by the trial Court. Later on the trial Court proceeded to frame issues. Even the order framing issues was unsuccessfully challenged by the petitioner right upto this Court. Thereafter, the trial Court proceeded with the suit and eventually decree for possession and arrears as well as mesne profits was passed in favour of the respondent No.1 and against the defendants, vide order dated 25.7.1997. The said Judgment and Decree was questioned by the petitioner by way of an appeal, which was, however, dismissed by the appellate Court on 7.12.2001. The petitioner then carried the matter before this Court by way of Second Appeal, which was also dismissed on 13 6.2002. In other words, the Judgment and Decree as passed against the petitioner and in favour of the respondent No.1, came to be confirmed right upto this Court. Only thereafter, the respondent No.1 instituted the present application for execution of the said Judgment and Decree. Even this application was resisted by the petitioner essentially on the ground that the Judgment and Decree as passed by the Civil Court is a nullity because the parties were governed by the Portuguese Decree No.43.525; whereas the Decree was passed under the provisions of the Transfer of Property Act. The executing Court rejected that contention by the impugned Order dated 30.6.2003. The executing Court has noted that it has come on record that no such plea was raised by the petitioner in the written statement filed during the course of the trial; whereas that plea was raised for the first time only in execution proceedings. It has further found that the executing Court cannot go behind the decree and it was not open for it to consider the appropriateness of the Decree on the ground that it is incorrect in law or fact The executing Court further found that the point of jurisdiction of the civil court was specifically framed by the trial Court and the same has been answered against the petitioner. It has also noted that the jurisdiction of the Civil Court on the ground that the parties were governed by the Portuguese Decree No.43.525, was never pressed into service although the issue of jurisdiction was specifically raised and decided either before the trial Court or in the two subsequent appeals filed by the petitioner herein. The executing Court has distinguished the decision relied upon by the petitioner in the case of Gangadhar Narsingdas Agrawal vs. Alina D'Costa e Pinto and ors., reported in 1989 (2) Goa Law Times 118 as being inapplicable to the facts and circumstances of the present case. The executing Court then proceeded to rely upon the reported decision of this Court in the case of Dhanaraji Baburam Yadev & Anr. v/s. Ramakant K. Dhanawade & Ors., reported in 2003 (2) ALL MR 425. On the above reasonings, the executing Court rejected the objection taken on behalf of the petitioner and instead directed the petitioner to hand over possession of the suit land to the respondent No.1/ Decree Holder within 60 days failing which the Decree-holder will be at liberty to get the decree executed through the Court and the costs shall be recovered from the petitioner.

(3.) THE above said Misc. Application was posted for hearing before me on 7.11.2003. As the contentions which were raised in the said application were overlapping with the issues involved in the writ petition pending before this Court, it was suggested to the Counsel appearing for the parties that instead of deciding the Misc. Application, the main matter can be heard and disposed of finally. Both the Counsel fairly accepted that suggestion and proceeded to argue the writ petition finally, forthwith. The matter was accordingly heard for sometime on 7.11.2003 and remained part-heard which hearing continued on 13.11.2003. Both the Counsel were heard at length and with their assistance, I have perused the relevant documents.