1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVN. APPLICATION NO. 729 OF 2009 Shri Sakharam Appa Ramoshi ... Applicant v/s Dr.Ramesh Mangaldas Patel & ors. ... Respondents Mr.P.B.Shah for the applicant. Mr.G.S.Godbole for respondent Nos.1 to 4. CORAM: SMT.NISHITA MHATRE, J. DATED: 21ST JANUARY, 2010 P.C.: 1. The civil revision application has been filed to challenge the order dated 20.11.2009. This order has been passed by the Executing Court in Special Darkhast Application No. 136 of 2005. A suit for specific performance filed by the respondents against the applicant had been decreed on 5.4.2004. However, while doing so, the Trial Court had directed that the permissions required under law while conveying the property should be obtained before executing the final conveyance. 2 2. Since the judgment debtor had not complied with the decree, the respondents filed a darkhast application. In that application, the applicant herein filed an application on 9.11.2009 praying that the judgment and decree should be declared as null and void. The Trial Court while considering this application has observed that the decree put into execution by the respondent decree holder was passed in Special Civil Suit No.2072 of 1995. The First Appeal No.999 of 2004 filed against the judgment and decree was dismissed by this Court on 6.10.2004 and, therefore, the decree has become final. The execution proceedings were filed thereafter by the decree holder. The Court has observed that no objection relating to the breach of Section 63 of the Bombay Tenancy and Agricultural Land Act (in short, B.T. & A.L. Act) or even under Section 36 of the Maharashtra Land Revenue Code (in short, M.L.R. Code), has been raised by the judgment debtor in his reply in those proceedings. The decree holder then filed an application for appointing a Commissioner for execution of the sale deed. The judgment debtor was served with a draft of the sale deed. He filed his objections to the same which were a reiteration of his objections to the execution application. It appears that the application filed by the judgment debtor raising these objections vide Exh.42 was dismissed. It appears that an 3 application was filed being Exh.60, by the judgment debtor for a review of the order directing appointment of a Commissioner. That application was dismissed since the judgment debtor had already filed these objections vide Exh. 42 and those objections had been rejected on 22.2.2008. 3. Another application was filed which is at Exh.74 on 1.6.2008 in which the same objections which were raised earlier by the judgment debtor before the Trial Court and this Court in the first appeal were reiterated. It was also contended that the decree holder had committed a fraud while executing the agreement to sell the property. 4. The Court has considered all these objections and the various applications filed by the judgment debtor with respect to the objections raised regarding frauds, the non- compliance of Section 63 of the B.T. & A.L. Act and under Section 36 of the M.L.R. Code, while dismissing the applications. The Court has held that the jurisdiction of the Executing Court is limited and, therefore, the objection that the decree is a nullity could not be raised. The Court has further held that the decree has to be executed in the manner that is prescribed in the decree. The Trial Court has held that the decree is not a nullity. 4 5. In my view, no error is committed by the Court while dismissing the application of the applicant contended that the decree is a nullity. It is contended that the learned advocate for the applicant that the conveyance has been executed without any permission which is required under Section 63 of the B.T. & A.L. Act and 36 of the M.L.R. Code. This contention can be raised in an appropriate proceeding. 6. Civil revision application dismissed. 7. The learned advocate for the applicant submits that he should be permitted to be continued in possession for a period of six weeks. The decree not to be executed for a period of six weeks. The applicant shall not part with the possession of the property or create third party rights or alienate the suit property in any manner whatsoever. ..... 5