Nemanna Kawale & Anr Vs. Dhondi Bhima Patil & Ors  INSC 451 (25 March 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
JT 1996 (4) 299 1996 SCALE (3)507
O R D
have heard the learned counsel on both sides.
admitted position is that the civil Court decreed the suit for eviction against
the appellant holding that he was not a tenant which order had become final.
The same plea of want of jural relationship is sought to be raised in
execution. When the objection raised was negatived, the High Court in Writ
Petition No.3319 of 1992 by order dated November 22, 1991 directed the executing Court to go
into the question. Accordingly, this appeal by special leave came to be filed.
learned counsel for the respondents, contended that in view of the specific
language employed in Section 85-A of the Bombay Tenancy and Agricultural Lands
Act, 1948 the only competent authority that has to go into the question is the
revenue authority under the Act and civil Court has no jurisdiction to go into
the question whether the appellant is a tenant or not. Therefore, the High
Court was right in directing the executing Court to go into the question. It is
rather unfortunate that the respondent has allowed the decree holding that he
is not a tenant to become final. Having allowed it to become final, it is not
open to him to contend that he is still a tenant under the Act and therefore
the decree is nullity. Under those circumstances, the executing Court was right
in refusing to entertain the objection for executing the decree. The High Court
was not justified, in the circumstances, in directing the executive Court to
consider the objection.
appeal is accordingly allowed. No costs.