JAYKISAN JAINARAYAN AGIWAL Vs. VISHNU NARAYAN SHINDE

JUDGEMENT

(1.) The short question for determination before me is whether an error on the point of jurisdiction of a Court, which has on an appraisal of the subject before it come to a correct finding, should be reversed by the High Court while exercising its powers under Article 227 of the Constitution ?

(2.) The petitioner-plaintiff filed a suit for recovery of unpaid rent and ejectment against the respondent-defendant. That was Regular Civil Suit No. 100 of 1974 in the Court of the Civil Judge, (Junior Division) at Niphad. In pursuance of a compromise between the parties, the trial Court passed a decree on 13-7-79. Shortly stated, the decree was to the effect that the unpaid rent plus damages and costs etc. all ascertained upto July 1979 was to be paid on or before August 30, 1979. On such deposit being made, the defendant was to continue as a tenant in the suit premises on a rental of Rs. 37.50 ps. per month. If the rent was not paid by the stipulated date, plaintiff was to be entitled to eject the defendant. Defendant did not pay and plaintiff levied execution. In execution, the defendant now the judgment-debtor, sought for time to vacate as also pay the money part of the decree. Time to vacate was sought on the ground that a house of his brother was under constructions, that for one reason or other the construction was not completed and that as soon as the house was ready, defendant would vacate. Time was granted and the case was fixed for 20-10-80. On that day upon a similar application made by the defendant for time, the Executing Court passed on order reading thus :--- "Amount be accepted. Darkhast to proceed for possession." Against this order, the judgment-debtor went in appeal to the District Court. The said appeal came up for hearing before the Assistant Judge at Nasik. The Assistant Judge negatived the decree-holders plea that the appeal did not lie and further held that the terms of the compromises created a tenancy. As such the decree-holders remedy was to file a fresh suit for ejectment preceded by a quit-notice and not trying to attain the same by seeking to execute the decree passed in the suit afore-mentioned. It is that order of the Assistant Judge which is impugned in the instant writ petition. Having regard to the submissions made before me, I allow the petition for the reasons given below. REASONS

(3.) The District Court held that the order of the Executing Court was appealable. In so finding, it relied upon the decision of Tulpule, J., in the case reported at (Ibrahim Khan v. Kasipura) 1979 Mh. Law Journal Note 1. That no longer represents the correct law. The decision of Tulpule, J., has been over-ruled by a Division Bench consisting of Dharmadhikari and Agarwal, JJ., Briefly stated, the Division Bench held that an appeal to challenge orders passed in execution, such orders having been passed after the coming into force of the Code of Civil Procedure (Amendment) Act (104 of 1976) is not tenable. In the instant case, execution was levied on 10-7-80 and the District Court had before it an order passed on 20-10-80. Therefore, the appeal to the District Court was not tenable.