(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 2441 OF 2011 Rajan Shrinivasan Pilley, Age : 41 years, Occupation : Service, R/o. Sadar Bazar, Bhingar, .. Petitioner Ahmednagar, (Original judgment District : Ahmednagar. debtor no.2) versus Ramchandra Laxman Bansode (Deceased through his L.Rs). 1. Uttam Ramchandra Bansode, 2. Dattu Ramchandra Bansode, 3. Chandrakant Ramchandra Bansode, 4. Ratikant Ramchandra Bansode, 5. Chatur Ramchandra Bansode, 6. Shamkant Ramchandra Bansode, 7. Suryakant Ramchandra Bansode (Dead), 8. Pushpalata Suryakant Bansode, 9. Shashikant Ramchandra Bansode, 10.Saguna Ramchandra Bansode (Dead), Age of all above : Major, Occupation of all above : Business, All R/o. H.No. 9, Sadar Bazar, .. Respondents Bhingar, Ahmednagar, (Original decree District : Ahmednagar. holders) ....................... (2) Mr. M.B.W. Khan, Advocate, for the petitioner. Mr. R.S. Deshmukh, Advocate, for respondent nos.1 to 6, 8 and 9. Respondent nos.7 and 10 reported to be dead. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 27TH APRIL 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. M.B.W. Khan, for the petitioner, and Adv. Mr. R.S. Deshmukh, for respondent nos.1 to 6, 8 and 9. 2. Respondent nos.7 and 10 are reported to be dead. 3. Rule. Rule made returnable forthwith. Heard finally with consent. 4. The petitioner has challenged the order passed by the learned Joint Civil Judge (Senior Division), Ahmednagar, below Exhibit 49 in Regular Darkhast No. 163/2007, dated 23-2-2011, and order passed by the learned District Judge-5, Ahmednagar, (3) below Exhibit 7 in Civil Revision Application No. 5/2011, dated 9-3-2011. 5. As per the provisions of Section 28(1)(bb) of the Bombay Rent Control Act, 1999 (For short, "1999 Act"), it is apparent that at Ahmednagar, court of Civil Judge (Junior Division) is competent to execute the decree passed against tenants under the provisions of the said Act. Here admittedly, decree is passed against the petitioner by the court of Civil Judge (Junior Division). The decree for its execution appears to have been transferred by the learned Principal District Judge, Ahmednagar, to the court of Civil Judge (Senior Division). 6. However, Adv. Mr. R.S. Deshmukh, for respondent nos.1 to 6, 8 and 9, fairly states that, that transfer can be ignored and the execution can proceed further from the stage at which it is pending now before the competent court. He also accepts that at Ahmednagar, competent court shall be the court of Civil Judge (Junior Division). 7. Adv. Mr. Khan, for the petitioner, has contended that the execution has to begin afresh before the court of Civil Judge (Junior Division). He relies upon judgment of learned Single Judge of this court reported at 2002(5) Mh.L.J. 415, in the case (4) of Vijaykumar s/o. Vinayakrao Pathak and another Vs. Madhukar s/o. Dinkar Chitale, to point out that in similar circumstances this court has held that administrative transfer to the court of Civil Judge (Senior Division), is not legal and has remanded matter back to the court of Civil Judge (Junior Division) for fresh trial. 8. Adv. Mr. Khan has further contended that as the suit property belongs to State Government, the provisions of 1999 Act are not applicable and decree is without jurisdiction. 9. Adv. Mr. R.S. Deshmukh points out that no such objection was raised when it was relevant i.e. during pendency of suit and in any case, the objection can be raised before competent court and it can be decided by that court in accordance with law. He argues that effort of the petitioner / tenant is to frustrate execution in one way or the other. 10. The observations in reported judgment cited supra, on which Adv. Mr. Khan has placed reliance, show a finding that there, courts below had proceeded to decide the matter without proper application of mind to the facts and law applicable thereto in relation to subject of jurisdiction and, therefore, acted improperly in exercise of their jurisdiction which necessitated (5) interference by this court. Because of that, the court of Civil Judge (Junior Division) at Ahmednagar was directed to deal with application for execution afresh. The facts there, also show that execution petition was entertained by the court of Civil Judge (Senior Division). The notice in execution was issued by that court only and thus, an objection to its jurisdiction was also raised immediately before that court. 11. Here, the execution proceedings were filed in the office of Civil Judge (Senior Division), as is standard practice and then were made over to the court of Civil Judge (Junior Division). Later on, because of some administrative order, the proceedings were transferred by the learned Principal District Judge to the court of Civil Judge (Senior Division). That transfer order is not produced before this court. Hence, in this proceedings, cognizance taken and initiation of execution proceedings is not without jurisdiction. No other prejudice is pointed out to this court by the petitioner. As such, execution proceedings can commence further from its present stage before competent court. 12. Objection under Section 4 about applicability of 1999 Act can be looked into by the court of Civil Judge (Junior Division), if it is raised before it in accordance with law and the (6) same can be decided by it. 13. In the result, the petition is partly allowed. Proceedings on the file of Joint Civil Judge (Senior Division), Ahmednagar, in Regular Darkhast No. 163/2007, are directed to be transferred to the court of Civil Judge (Junior Division), Ahmednagar, for its further execution in accordance with law. 14. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/2441wp