1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.734 OF 2008. 1. Smt. Raquel Fernandes House No.217, Loyola Wado, Utorda, Salcete-Goa .. Petitioner. (Orig. Defendant No.1/ Judgment Debtor no.1) Versus 1. Smt. Leopoldina Mendonca Pereira (since deceased) through her LRs: 1a. Ivo Bernardo Pereira Mendonca, 1b. Edith Varda Mendonca, 1c. Maria de Lourdes Ninette Pereira Mendonca (deceased) 1d. Ricardo Rollin Pereira Mendonca 1e. Lira Raimunda Mendonca 1f. Blasco Pereira Mendonca 1g. Maria Eulalia Chontal Pereira all residents of House No.74, Utorda, Majorda, Salcete, Goa (Orig. Plaintiffs / Decree holders) 2. Shri Beraldo Telis House No.217, Loyola Wado, (Orig. Judgment Utorda, Salcete, Goa Debtor no.2) .. Respondents Mr. A.F. Diniz, Advocate for the petitioner. 2 Coram :- A. P. LAVANDE, J. Date of reserving the Order :- 4 th December, 2008. Date of Pronouncing the Order : - 11 th December, 2008. ORDER : 1. Heard Mr. Diniz, learned Counsel for the petitioner. 2. By this petition under Article 227 of Constitution of India, the petitioner takes exception to the order dated 18.10.2008 dismissing the objection taken by the petitioner to the decree passed in Regular Civil No.90/1993/C. 3. The respondents filed Regular Civil Suit No.90/1993/c against the petitioner herein and one Beraldo Telis for their eviction from the suit house. The suit was decreed on 29.4.2000 and the appeal preferred against the said decree, was dismissed by the Lower Appellate Court by the judgment and decree dated 06.04.2004. Thereafter, the respondents filed an application for execution which was numbered as Regular Execution Application No.35/2005/D. The petitioner and the respondent No.2 filed objections to the execution vide reply dated 11.04.2008. The objections were as under : 3 i) That the respondent No.1(c) had expired on 29.04.1994 and as such the decree could not be executed. ii) That the respondent No.1(g) is a person of unsound mind by birth (Mongol) iii) That issue No.1 regarding the mundkarship had not been referred to Mamlatdar as required under the Mundkar Act and consequently, the said decree was a nullity. 4. A separate application was also filed for holding an enquiry. The same was opposed by the decree holder. The Executing Court, by the impugned order dated 18.10.2008, dismissed the objections and issued warrant, though bailiff, to deliver vacant possession of suit house to the decree holder. 5. Mr. Diniz, learned Counsel for the petitioner/ judgment debtor No.1submitted that having regard to the objections taken by the judgment debtor an enquiry ought to have been held by the Executing Court. According to the learned Counsel, since the respondent No. 1(c) was dead, the decree passed in favour of the respondents, was a nullity. The learned Counsel further argued that since judgment debtor claimed that the respondent No.1(g) was a person of unsound mind, an enquiry ought to have been held by the Executing Court and the impugned order could not have been passed without holding the enquiry. In so far as the 4 issue of mundkarship is concerned, the learned Counsel submitted that the Civil Court had no jurisdiction to decide the issue and it was exclusively for the Mamlatdar to decide the issue of mundkarship and, therefore, the decree passed by the Trial Court as well as by the Lower Appellate Court, confirming the decree passed by the Trial Court, are nullities. In any case, the learned Counsel submitted that an enquiry ought to have been held by the Executing Court before passing the impugned order. In support of his submission, the learned Counsel relied upon the following judgments : i) Baburao Vishnu Naik Versus Ramchandra Vishnu Naik reported in 1989 (1) G.L.T. (175) ii) Tippanna Ramchandra Jannu Versus Somnath Dnyanoba Mahapure reported in 1990 (1), Bom. C.R., 677. iii) Ram Chandra Arya Versus Man Singh and another reported in AIR 1968 SC 954. 6. I have considered the submissions made by the learned Counsel for the petitioner and perused the record as well as the judgments relied upon by the learned Counsel for the petitioner. 7. The Executing Court held that the decree passed against the defendants / judgment debtor and in favour of the respondent No.1(c) Maria deLourdes Ninette Pereira Mendonca, who had expired on 29.04.1994, was not nullity and it was mere irregularity by placing 5 reliance upon the judgment of Madras High Court in Abdul Aziz Saheb Versus Dhanabagiammal and Ors. reported in AIR 1983 Madras 5. I find that the finding recorded by the Executing Court, cannot be said to be without jurisdiction in as much as the respondent No1(c) was one of the decree holders and, therefore, the entire decree cannot be termed as nullity. Moreover, the respondent No.1(c) expired in the year 1994 and the Trial Court passed the decree on 29.04.2000 which was confirmed in appeal on 06.04.2004. The judgment debtors/ defendants ought to have taken this point either in the suit or in the appeal preferred by them. The judgment debtors having not taken this point before both the Courts, it is too late for them to contend for the first time in execution application that the decree passed against them, is a nullity. Moreover, the Trial Court held that the respondent No.1(c) was one of the legal representatives of the original plaintiff, who died and as such the legal representatives of the original plaintiff, were entitled to reap the benefits of the decree, even if one of them was under any disability and as such, the same would not affect the decree. I, therefore, find no merit in the first objection. 8. In so far as the second objection taken that the decree holder No.1(g) is a person of unsound mind is concerned, the application filed by the petitioner before Executing Court discloses that no details, as to the time when the petitioner came to know about this 6 fact, are mentioned. In so far as the judgment in Somnath Mahapure's case ( supra ) relied upon by Mr. Diniz is concerned, the same does not advance the case of the petitioner. In the said judgment the learned Single Judge of this Court had held that the proceedings against a person of unsound mind without next friend or guardian ad litem, is ab-initio bad and failure of such person to raise plea of insanity in an earlier litigation or same plea having not been taken on his behalf, would be of no consequence. The learned Single Judge held that whole trial was vitiated and there was no question of res judicata nor bar by way of estoppel. In the present case, decree holder No.1(g) is one of the decree holders and therefore, the decree cannot be termed as nullity. 9. In so far as the judgment in Ramchandra Arya's case (supra) is concerned, the same also does not advance the case of the petitioner in as much as the issue before the Apex Court was entirely different. The Apex Court held that the decree against lunatic without appointment of guardian, was void ab initio. 10. In my considered opinion, the said judgments do not advance the case of the petitioner. In the present case, the decree was not passed against the respondent No.1(g), who has claimed to be insane. Moreover, the respondent No.1(g) is not the sole decree holder. 7 I find that the reasons given by the Executing Court, cannot be faulted. The judgments relied upon by Mr. Diniz, do not advance the case of the petitioner. Therefore, the Executing Court was justified in rejecting the said objections. 11. The third objection was on the ground that the issue as to whether Anunciacao Rodrigues was the mundkar of the plaintiffs, was not referred to the Mamlatdar and, therefore, the decree was a nullity. The Executing Court held that when the suit was filed Anunciacao Rodrigues had already expired and since it was the case of the defendants that Anunciacao Rodrigues was a permanent licencee of the plaintiffs, the issue of mundkarship, did not arise between the plaintiffs and the defendants. The Executing Court held that even if the issue was referred in terms of Section 32 of the Mundkar Act, the defendants would not get any right to pursue the same since the defendants themselves, did not claim to be mundkars of the suit house. Moreover, the defendants did not raise this objection in the appeal filed by them. The approach of the Executing Court, cannot be said to be illegal. The judgment debtors did not raise this issue before the Lower Appellate Court as is evident from the judgment passed in Regular Civil Appeal No.35/2001 preferred by the defendants/ judgment debtors. The judgment in Baburao Vishnu Naik's case (supra), does not also advance the case of the petitioner in as much as factual situation in that case was 8 entirely different. In the said case, the petitioner, who was the brother of the respondent No.1 claimed to be mundkar and the said issue was ordered to be decided by the competent Mamlatdar. The factual situation in the said case, was entirely different and therefore, the same does not support the case of the petitioner. 12. Thus, upon consideration of the entire material, record and submissions made by Mr. Diniz, I find that the Executing Court was justified in dismissing all the objections to the execution application filed by the decree holders, without holding enquiry. The whole attempt of the petitioner, appears to frustrate the decree of eviction passed against her by the Trial Court, which has been confirmed by the Lower Appellate Court. Consequently, the petition is summarily rejected. A. P. LAVANDE, J. SMA