dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.6845 OF 2008 PETITION NO.6845 OF 2008 PETITION NO.6845 OF 2008 Shivanand Shankar Telang & ors. ...Petitioners Vs. Madanlal Chunilal Dakle ...Respondents. Mr.A.G.Damle for the Petitioner. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 17th October, 2008. : 17th October, 2008. : 17th October, 2008. P.C. P.C. P.C. The petitioners/obstructionists have invoked Article 227 of the Constitution of India and challenged the order dated 12.08.2008 passed by the Appellate Bench of Small Causes Court at Bombay, whereby, the order passed by the trial Judge in Obstructionist Notice No.32/1993 in RAE Suit No.511/4146/1966 dated 28.04.2005 has been confirmed. The trial Court, after giving full opportunity to the parties held that the obstructionists failed to prove that they become the tenants of flat No.2A being the suit premises and are protected under the provisions of the Bombay Rent Act and further that their father had paid the rent of the suit premises to the landlord directly till his death in the year 1975 and had issued the rent receipts for the said payments though in the name of original tenant ( 2 ) and thereupon made the Notice of Motion absolute filed by the respondent/landlord and ordered that the decree passed be executed by removing the obstructions caused by the obstructionists and also directed to pay costs of the notice to the decree holders. 2. The lower Appellate Bench again after hearing both the parties further confirmed that the petitioners are not protected under the provisions of Bombay Rent Act. There is no material to justify the case of the petitioners/obstructionists that their father was sub-tenant and/or had contributed towards the rent of the suit premises to the landlord. The other material including the evidence of the landlord and even of tenant also no where supports that Shankar was a sub-tenant in respect of the suit premises. Bare averments, as observed rightly, cannot justify/support the case of sub-tenancy even though he is in possession as family member of Kamalakar, who was original tenant. In the evidence of Kamalakar also it is observed that Shankar was residing as family member and not as sub-tenant. There is nothing to show that the original owner has admitted him as a sub-tenant and the original tenant has subletted the premises and, therefore, both the courts rightly opined that they are protected under the provisions of Bombay Rent Act. ( 3 ) 3. The Appellate Court is right in observing that the decree is not nullity as prayed. There is no material on record to show and justify the case of fraud. Therefore, the decree in question is executable and accordingly ordered after considering the objections and all questions arising between the parties. It is settled that executing court cannot go beyond the decree. There is no evidence and material to show how the decree is null and void. The execution proceedings filed by the co-owner, in the facts and circumstances of the case, is maintainable. There is no bar once the decree becomes final and binding, specifically when original tenant never raised any such objection including other co-owners. 4. Taking all this into account, I see no case to interfere with the reasoned and concurrent orders passed by the Courts below. The petition is accordingly dismissed. 5. The learned counsel appearing for the petitioners seeks time to vacate the premises as petitioners are in possession since long. On usual undertaking the time is granted for six months. Filing of undertaking is a ( 4 ) condition precedent within two weeks. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)