1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.615 OF 2009 Smt.Mangala Sudhakar Deshmukh ...Petitioner vs. Kantilal Mohanlal Khinvasara ...Respondent Mr.Uday Warunjikar for the petitioner Mr.A.S.Daver a/w Mr.Sayeed Mulani i/b Mulani & Co. for the respondent CORAM :A.S.OKA,J. DATE : AUGUST 28, 2009 P.C. 1 The respondent-plaintiff filed a suit for possession against the petitioner and her husband in respect of the suit premises more particularly described in the plaint. The case of the respondent was that the defendants in the suit filed by the respondent were inducted in the suit premises on leave and licence basis for a period of 11 months. The petitioner is the second defendant in the suit filed by the respondent and the first defendant was her deceased husband. The suit was filed on the ground that the defendants did not vacate the suit premises after expiry of licence. The trial court decreed the suit. In appeal preferred by the petitioner, the decree for possession has been confirmed. 2 The respondent filed the execution application. In the execution application the petitioner filed an objection contending that the decree has been fraudulently obtained. The contention of the petitioner in the said objection was that the respondent is not concerned with the the land on which the suit premises is situated. It is contended that though the respondent has 2 alleged that the land on which the suit premises is situated is a part of the plot no.6, it is in fact not a part of the said plot. In support of the objection, the petitioner examined herself and she was allowed to examine two more witnesses. By the order dated 19 th October 2007, the said objection was rejected. The appeal against the said order has been dismissed. The aforesaid orders have been challenged by filing this petition under Article 227 of the Constitution. 3 The submission of the learned counsel for the petitioners is that the evidence produced on record shows that the respondent had no title in respect of the land on which the suit premises is situated and in fact he is a trespasser. He submitted that the decree has been obtained by fraud. He submitted that without considering the plea of fraud, objection raised under section 47 of the Code of Civil Procedure,1908 has been overruled by the trial court. 4 I have given careful consideration to the submissions. On plain reading of the contentions raised by the petitioner by way of objection it is apparent that what was urged was that the respondent was not the owner of the land below the suit premises. The suit was filed by the respondent on the ground that he was licensor and defendants were the licensees and on revocation of the licence, the suit premises was not vacated. In substance, the contention raised by the petitioner is that as the respondent had no title, the decree passed in his favour is illegal. Even assuming that what is contended by the petitioner in execution is correct, the decree cannot be said to be nullity in as much as the finding recorded in the suit is that the defendants including the petitioner were inducted as licensees in 3 the suit premises and on revocation/termination of licence, the defendants cannot continue to occupy the suit premises. It must be stated here that by a separate order passed today, the Second Appeal challenging the decree for possession has been dismissed. 5 For dealing with the contention raised by the petitioner, the executing court will have to go behind the decree. Such exercise can be done by the executing court. In fact, in the impugned Judgment and Order, the Appellate Court has observed that such objection cannot be entertained in execution. The approach of the courts below is legal and proper. No interference is called for. 6 There is no reason to interfere with the impugned Judgments and Orders in this petition under Article 227 of the Constitution of India. Writ Petition is rejected. JUDGE