SRJ wp-67-1996.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.67 OF 1996 Vincent Menezes .. Petitioner V/s. Lily Mary Kenny & Others .. Respondents. Mr. D.V.Mirajkar, for the Petitioner. Mr M.L.Palan i/b. J.P.Thakkar, for Respondent Nos.1(a), 1(b), and 2 to 4. CORAM : A.S.OKA, J. DATE : 29th MARCH,2010. JUDGMENT : 1] Heard learned Counsel for the Petitioner and the Respondents. The Petitioner is the Defendant/Judgment debtor and the Respondents are the Plaintiffs/Decree holders. The Respondents have filed the suit in respect of the suit premises being Room No.1, Ground Floor, Kenny House, 63, Kapad Bazaar, Mahim, Bombay 400 016. The suit was filed in the Court of Small Causes under the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as the said Act). The decree for possession under the said Act was passed against the Petitioner. The decree was put to the execution and an objection was raised by the Petitioner to the execution of the decree on the ground that in view of the provisions of the Bombay Town SRJ wp-67-1996.sxw 2 Planning Act, Final Plot no.646 on which the suit premises is situated has been vested in the planning authority with effect from 1st March, 1961. The objection was that in view of vesting of the said final plot in the Municipal Corporation, the Respondents had lost right, title and interest and therefore, decree was no longer executable. The executing Court upheld the said objection and discharged the notice taken out by the Respondents under Rule 22 of Order XXI of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). A Revision Application was preferred by the Respondents before the Appellate Bench of the Court of Small Causes. By the impugned order, the Appellate Bench has interfered and has set aside the order of the Executing Court. The Appellate Bench directed that the execution will proceed. 2] The learned Counsel appearing for the Petitioner submitted that in view of operation of law the final plot on which the suit premises is situated has vested in the planning authority in the year 1961. He submitted that the plot of land includes structure thereon and, therefore, by virtue of vesting, the Respondents/Plaintiffs, are not entitled to claim any right, title and interest in the suit premises and they are not entitled to execute the decree. Inviting my attention to the impugned Judgment and Order, he submitted that the order of the Executing Court is reversed only on the ground that the contentions raised by the Petitioner were not taken in the Written Statement. He submitted that on this ground, the order of SRJ wp-67-1996.sxw 3 Executing Court cannot be set aside. The learned Counsel appearing for the Respondents placed reliance on a decision of the Apex Court in the case of Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman and others (AIR 1970 SC 1475). He submitted that the Executing Court cannot go behind the decree. 3] I have carefully considered the submissions. The decree has been passed in a suit filed under the said Act. Under Section 28 of the said Act, exclusive jurisdiction has been conferred on the Court of Small Causes to entertain and try all suits between a landlord and a tenant relating to recovery of possession of any premises to which the said Act is applicable. In such a suit, the Court of limited Jurisdiction under section 28 of the said Act cannot decide the issue of title. In fact Section 29-A of the said Act specifically provides that notwithstanding the decree passed by the Court exercising jurisdiction under section 28 of the said Act, a Suit for establishing the title by parties to the said suit is not barred. 4] According to the case of the Petitioner, the plot on the suit premises is situated has been vested in the Municipal Corporation in the year 1961. The suit was filed subsequently. As stated earlier, the Court of Small Causes had exclusive jurisdiction to entertain and try a suit under section 28 of the said act as there was no dispute as regards existence of the landlord-tenant relationship between the Respondents and the Petitioner. SRJ wp-67-1996.sxw 4 Even in the execution application, it is not the case made out by the Petitioner that the Court of Small Causes had no jurisdiction to pass the decree. Though the objection of the Petitioner is based on the defect in title of the Respondents, the Petitioner is not disputing that the Respondents are her landlords. The issue of title was irrelevant while deciding the suit as well as the execution application for execution of a decree passed in a suit under the said Act by a Court having a limited jurisdiction under section 28 thereof. 5] In substance the contention raised by the Petitioner is that the decree is illegal, as the landlords have no title. The said objection cannot be gone into under section 47 of the said code as the same may amount to Executing Court behind the decree which is not permissible under law. The objection does not touch the jurisdiction of the Court to pass the decree. No case is made out for interference under article 227 of Constitution of India. Writ Petition is rejected. Rule is discharged with no order as to costs. 6] The learned Counsel appearing for the Petitioner prays for continuation of interim relief. The learned Counsel appearing for the Respondents opposes the prayer. Interim relief granted by this Court will for twelve weeks from today. (A.S.OKA, J. ) SRJ wp-67-1996.sxw 5