1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 133 OF 2009 Shri Madhavrao Baburao Raut (Since deceased) 1A Smt.Indumati Mahdavrao Raut and ors. : Applicants. Versus Mr.Abdul Rehman Haji Abdul Gafoor (Since deceased) 1A Jiyaur Rehman S/o Abdul Rehman (Since deceased) Kum. Tarannum Jiyaur Rehman and ors. : Respondents. Shri. S K Shinde i/by Sagar Kasar for the Applicants. Shri A N Mulla for the Respondents. CORAM : R.M.SAVANT, J. DATED : APRIL 01, 2009 P.C. 1. The above Civil Revision Application has been filed by the Applicants who are the judgment debtors. The Applicants have suffered a decree in R C S No.817 of 1974, which decree was confirmed by the Lower Appellate Court in Civil Appeal No.322 of 2000 which came to be dismissed on 24/08/2004. The Applicants 2 thereafter filed Writ Petition No.9264 of 2004 which was also dismissed on 7/3/2005. Against which the Applicants filed Special Leave Petition No.9758 of 2005 which came to be decided on 7/10/2005 and the Applicants were granted time to vacate the suit property till 31/07/2006. 2. The Applicants by this Civil Revision Application, challenge the order dated 30/12/2008 passed by the learned Executing Court i.e Joint Civil Judge, Junior Division, Nashik in Execution Application No.368 of 2005 by which order the objections raised by the Applicants in the Regular Darkhast No.368 of 2005 have been rejected. 3. The first ground raised by the Judgment Debtors especially Judgment Debtor No.5 is that the decree is a nullity in view of the provisions of Section 15 of the Bombay Rent Act. It is the case of the Judgment Debtor No.5 that he was inducted as sub-tenant prior to 1973 and continued to be so on or before 1st February 1973. Therefore, as per the provisions of Bombay Rent Act, he has become tenant and cannot be considered as a sub-tenant. It is the case of 3 the Judgment Debtor No.5 that his case of independent tenancy, as per the provisions of Section 15 of the Bombay Rent Act, has not been considered by the trial Court in the said R C S No.817 of 1974. 4. In so far as the said objection is concerned, the issue of sub-tenancy was framed and it has been decided by the trial Court on merits. The sub-tenancy of the Judgment Debtor No.5 has been held as illegal by the trial Court as also by the Lower Appellate Court in Civil Appeal No.322 of 2000. Apart from this, the lease deed, entered into between the Decree Holder and the Judgment Debtor No.1, discloses that the suit property was rented out to the original tenant for running his own business of theatre named and style as Prabhat Theater. Perusal of the judgments of the trial Court as also the Lower Appellate Court show that both the courts below have concluded that sub-letting was prohibited by lease agreement. The Judgment Debtor No.5 has contended about his independent right of tenancy earlier. The Executing Court, therefore, held that it cannot go behind the decree unless the decree passed is a nullity. The Executing Court held that the objection raised must be regarding executebility of the 4 decree and not of the validity of the decree. The Executing Court, therefore held that the decree was not null and void and the Judgment Debtors have not shown as to how it is not executable. 5. The Judgment Debtors have raised another objection regarding non-joinder of necessary parties. It is the case of the Applicants in the said execution proceedings that the present decree holders are not the exclusive owners of the suit property and that one Mansoornisa has 1/5th share in the suit property as Special Civil Suit No.29 of 1947, filed by her for partition and separate possession, was decreed in her favour. The said objection was also turned down by the Executing Court in view of the fact that the said Mansoornisa did not file any proceedings for execution of the decree passed in her favour within 12 years and, therefore, actual partition has not taken place an the position of the suit property which was prior to the decree of the suit remained as it is. It is the case of the Judgment Debtors that as Mansoornisa is not a party to the present execution proceedings, the decree holders have no locus standi to ask for the possession of the suit property. The Executing Court did not find any 5 substance in the said objection as neither the said Mansoornisa nor her legal heirs have taken any objection to the application of the decree holders for the eviction of the judgment debtors till today. 6. The Executing Court has relied upon the judgment of the Apex Court reported in AIR 1989 SC 758 in the case of Palsing v/s. Sundersingh wherein it has been held by the Apex Court that eviction suit against a tenant can be filed by any of the co-owners of the premises and such a suit is maintainable. 7. The Executing Court also rejected the said objection of non- joinder of necessary parties on the ground that the plea of non-joinder of necessary parties has to be taken at the earliest stage. Since the objection regarding non-joinder of necessary parties was not taken at the earlier stage and since any one of the co-owners of the property can file a suit for eviction against tenant, the Executing Court did not find any merit in the said objection raised by the Judgment Debtors. The Executing Court, therefore, by its order dated 30/12/2008 rejected the said objections filed by the Judgment Debtors. 6 8. Aggrieved by the said order dated 30/12/2008 passed by the Executing Court, the matter was carried in Appeal by filing Civil Appeal No.40 of 2009. The said Civil Appeal was heard along with another Civil Appeal No.41 of 2009 filed by the original lessees. Both the Appeals were dismissed on the ground that they are not maintainable. 9. Having perused the impugned order passed by the Executing Court as well as the Lower Appellate Court, in my view, no case for invoking the revisional jurisdiction is made out. The above Civil Revision Application is accordingly dismissed. [R.M.SAVANT, J]