*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6400/2009 Nanasaheb Tukaram Nikam (decd.) and others. ..Petitioners -VERSUS- Kachardas Shankarlal Karwa. ..Respondent ............... Mr.M.M.Sathaye, Advocate for the Petitioners. Mr.Sagar Kasar, Advocate for the Respondent. ............... CORAM: A.P.DESHPANDE, J. Dated 16th November, 2009. PC:- 1 This Writ Petition is filed by the Judgment Debtor calling in question the order passed by the Executing Court dated 18.07.2009 directing issuance of possession warrant with a view to execute the decree. 2 The Respondent/landlord (Decree Holder) filed a suit for ejectment and possession of the suit premises against the Petitioners/tenant on various grounds including the ground that the tenanted premises are bonafidely required by the landlord for his personal occupation. The Trial Court decreed the suit. The Appellate Court dismissed the appeal filed by the Petitioners/tenant. The revision carried to the High Court by the Petitioners/tenant also *2* came to be dismissed. Thereafter, the Petitioners/tenant approached the Supreme Court by filing Special Leave Petition. The Supreme Court dismissed the Special Leave Petition by passing the following order dated 30.11.2007:- “The special leave petition is dismissed. At this stage, counsel prays for some time to vacate the suit premises. Accordingly, dispossession of the petitioner(s) is stayed for a period of three months from today subject to filing usual undertaking within four weeks from today. Petitioner(s) shall handover the vacant and peaceful possession of the suit premises to the respondent on or before 01st March, 2008.” 3 Though the time sought by the Petitioners to vacate the premises was granted, despite expiry of time granted by the Apex Court, the possession of the suit premises was not delivered to the Decree Holder, which prompted the Decree Holder to file the execution proceedings. In the execution proceedings, the Judgment Debtor (son of the original tenant) filed an application purportedly under Section 47 r/w Order-21 Rule-97 of the Civil Procedure Code objecting to execution of the decree. Obviously Order-21 Rule-97 is not attracted. The grounds raised in the application purportedly filed under Section 47 is to the effect that the original tenant (father of the Judgment Debtor) could not point out the availability of various premises with the landlord in the suit proceedings. It is also averred that the landlord/Plaintiff did not point out the premises which were available with him and thus, by mis-representation the *3* decree for ejectment and possession was obtained. In substance, the Judgment Debtor/tenant has questioned the grant of decree for eviction on the ground of bonafide need. It is crystal clear that the Executing Court cannot travel beyond the decree. The same question about existence of bonafide need of the landlord is yet again raised in the execution proceedings which is concluded by passing a decree in the suit. The application under Section 47 of CPC, thus, on the face of record is devoid of any merit whatsoever. 4 Be that as it may, under the garb of pendency of application objecting to execution of the decree, few more years are lost in litigation. 5 On earlier occasion, when the Executing Court issued the warrant of possession, the Judgment Debtor had filed Writ Petition bearing No.6725/2008. Perusal of the order disposing of the said writ petition reveals that what was canvassed before this Court was that the application under Section 47 is still pending and the possession warrant is issued without deciding the said application. Hence, this Court directed the Trial Court to decide the said application. After the matter went back to the Executing Court, the Executing Court framed the issues and listed the execution proceedings for recording of the evidence of the Judgment Debtor in support of his objection. The Judgment Debtor did not remain present on 20.04.2009, hence, the Decree Holder’s Advocate moved an application seeking rejection of the application filed by the Judgment Debtor objecting to execution application at Exhibit-23. The Executing Court has recorded that the evidence of the Judgment Debtor is closed and directed that the effect of closure of *4* evidence be carried out at Exhibit-23 by treating the evidence of the Judgment Debtor as closed. 6 According to the learned counsel for the Respondent/ Decree Holder, by necessary implication vide order dated 20.04.2009 the application at Exhibit-23 has been rejected. Whereas, the learned counsel for the Petitioners/ Judgment Debtor contends otherwise. 7 Be that as it may, thereafter, the Judgment Debtor moved yet another application at Exhibit-55 with a view to recall the order dated 20.04.2009 and sought permission to lead the evidence. The Executing Court rejected the said application by an order dated 18.07.2009 which order is challenged by filing the present Writ Petition. The Executing Court has issued the possession warrant and hence, the present Writ Petition. 8 The order passed by the Executing Court dated 20.04.2009 does not categorically mention that the application at Exhibit-23 is rejected. However, one thing is clear that the evidence of Judgment Debtor came to be closed as he did not remain present and did not lead any evidence in support of the application at Exhibit-23. It further says that the effect of closure of evidence of the Judgment Debtor be carried out at Exhibit-23. Thus, in substance the application raising objection stands rejected. 9 What is to be seen in the present case is whether the objection raised by the Judgment Debtor has any substance for the same being tried after recording the evidence etc.. It is reiterated that the decree passed by the Trial Court is maintained up to the Supreme Court where-under eviction of the tenant has been ordered *5* on the ground that the landlord needs the suit premises for his bonafide occupation. The objection raised in Exhibit-23 is to the effect that there is no bonafide need established by the landlord and the availability of other premises with the landlord could not be pointed out by the original tenant (father of the Judgment Debtor) and the landlord as well suppressed the availability of other premises. In substance, what is being done is to yet again raise the same question: Does there exist bonafide need for the landlord to claim the suit premises? This obviously cannot form the subject matter of the execution proceedings as the Executing Court cannot go beyond the decree. Having found that the objection is unsustainable, I do not propose to interfere with the impugned order even assuming that there is some illegality in it, for the reason that interfering with the impugned order would result in setting aside a right order and replacing it with a wrong order. This situation can never be obtained by exercising the writ jurisdiction. 10 The Apex Court had categorically directed the Judgment Debtor, after granting three months’ time, to handover the vacant and peaceful possession of the premises to the Decree Holder on or before 01.03.2008. Though the Petitioners/Judgment Debtor obtained an advantage under the order of the Supreme Court and retained the possession till expiry of the period granted by the Supreme Court, they have not obeyed the concluding part of the order which commands the Petitioners to handover the possession on or before 01.03.2008. Thus, the Petitioners prima facie seem to be in contempt. 11 For the reasons set out herein above, I do not wish to *6* interfere with the impugned order and the consequential issuance of the possession warrant. There being no merit in the petition coupled with the fact that the Petitioners have not come with clean hands and in view of the order passed by the Apex Court, the present Writ Petition stands dismissed. (A.P. Deshpande, J)