KBP 6411-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6411 OF 2009 Mrs.Supriya Chandrakant Karkare ..Petitioner Vs. Smt.Meena Bhalchandra Kale and ors. ..Respondents ......... Mr.Nikhil Karkare, for petitioner. Mr.J.S.Deo, for respondent No.3. ......... CORAM : A.S.OKA, J.. DATE : 27 th August, 2009. P.C. : 1] Heard learned counsel for the petitioner. The challenge in this petition under the Article 227 of the Constitution of India is to the order passed by the executing Court, by which the warrant of possession has been issued in execution of the final decree passed in favour of the 1 st to 3 rd respondents. The petition has a chequered history. The present petitioner is the original second defendant. The first to third respondents are the original plaintiffs. In the year 1984, the plaintiffs filed a suit for partition and separate possession against the petitioner and two others. The suit property is a plot of land situated in the fifth respondent Co-operative Housing Society. On 23 rd April, 1990 a preliminary decree was passed in the said suit. The KBP 6411-09.sxw 2 proceedings for drawing the final decree were filed by the original plaintiffs. It must be stated here that the present petitioner preferred an appeal against the preliminary decree. The said appeal was dismissed by the District Court. On 6 th September, 2003 a final order was passed by the trial court in the final decree proceedings directing that the partition shall be effected as provided in the said order. An appeal was preferred by the petitioner against the said order dated 6 th September, 2003, which came to be dismissed in the year 2004. While dismissing the appeal it was observed that the petitioner can put forth her grievance at the time of effecting partition by metes and bounds. A Second Appeal was preferred against the decree passed by the District Court which came to be withdrawn. Thereafter, on 25 th July, 2005 the petitioner filed an application before the trial court contending that the preliminary decree was nullity as the Civil Court lacked jurisdiction in view of Section 91 of the Maharashtra Co-operative Act, 1960. The said application was rejected by the trial court. A Revision Application was preferred by the petitioner being Civil Revision Application No.136 of 2005 for challenging the said order. The Revision Application was dismissed by this Court by order dated 26 th September, 2005. Thereafter, a Special leave Petition for challenging the said order was filed which was dismissed by the Apex Court. A review petition was thereafter filed on 23 rd June, 2008 seeking review of the order passed by this Court in Revision Application. As there was delay, KBP 6411-09.sxw 3 an application for condonation of delay was filed which came to be rejected by order dated 2 nd September, 2008. A Special Leave Petition was filed by the petitioner against the said order in the Apex Court, in which initially Notice was issued. In the meanwhile, final decree was formally drawn in terms of order dated 6 th September, 2003. A writ petition came to be filed by the petitioner for challenging the final decree which was dismissed on 23 rd January, 2009. In the meanwhile, the Special Leave Petition preferred by the petitioner for challenging the order of this court by which an application for condonation of delay in Review Application was dismissed came up before the Apex Court on 31 st July, 2009 and the said Special Leave petition was dismissed. Thereafter, the order impugned has been passed by the executing court thereby issuing possession warrant for executing the final decree which has attained finality. 2] The learned counsel appearing for the petitioner submitted that it is open for the judgment debtor to raise the issue of jurisdiction in the execution proceedings. He submitted that as far as issue of jurisdiction is concerned, the decision of this court in the case of Ishwaribai Tahilram Vs. Ramchand Vallabhdas Katara and ors. (1987 C.T.J.438) is in favour of the petitioner. He submitted that this court while rejecting the Revision Application erroneously placed reliance on a decision of the Division Bench in the case of Prakash R.Mehta and anr. Vs. Veena D.Chhablani and ors. [1998(4) All. KBP 6411-09.sxw 4 M.R. 484], in as much as the decision of the Devision Bench related to a tenant co-partnership society. He submitted that the view taken by this court while rejecting the Revision Application is in conflict with the aforesaid decision of the learned Single Judge of this Court in the case of Ishwaribai (Supra) and therefore, a reference needs to be made to a larger Bench. He submitted that the dismissal of the two special leave petitions filed by the petitioner by the Apex Court is by non-speaking orders and therefore said orders will not come in the way of the petitioner. In support of his contention reliance is placed on a decision in the case of Ashok Leyland Ltd. Vs. State of T.N. and another [(2004)3 SCC]. He submitted that the principles of res- judicata or principles analogous to res-judicata will not come in the way of the Court in considering the issue of jurisdiction. He submitted that without dealing with the issue of jurisdiction raised by the petitioner, the possession warrant could not have been issued. The contention of the petitioner is that there is lack of inherent jurisdiction in the Civil Court. 3] I have carefully considered the submissions. As stated earlier, the preliminary decree passed by the trial court has attained finality. It must be stated here that the petitioner made an application at exhibit 72 in final decree proceedings raising a contention that in view of Section 91 of the Maharashtra Co-operative Societies Act, 1960, the Civil Court lacked inherent jurisdiction to entertain and try the suit. The said contention was KBP 6411-09.sxw 5 considered by the trial court in final decree proceedings and was rejected by the judgment and order dated 17 th August, 2005. In a Revision Application preferred by the petitioner in this court, the said order was challenged. The perusal of the judgment and order dated 26 th September, 2005 passed by this Court in the revision application shows that the contention regarding the bar of jurisdiction was specifically raised before this Court. The said contention has been noted by this Court in paragraph No.4 of the order dated 26 th September, 2005. The said objection was dealt with in paragraph No.5 of the said judgment on the basis of the decision of the Division Bench in the case of Prakash (Supra). The Revision Application was dismissed on merits by holding that there was no substance in the contention raised by the petitioner regarding the bar of jurisdiction. As stated earlier a Special Leave Petition was filed against the said order before the Apex Court which has been dismissed in 2 nd December, 2005. Thereafter, a Review Petition was filed before this Court seeking review of the said judgment and order. The application for condonation of delay in filing the review application was rejected by this Court and a Special Leave Petition filed by the petitioner against the said order has been dismissed in the Apex Court. It is already pointed out that an attempt was made by the petitioner to challenge the final decree by filing a Writ Petition which has been rejected by this Court on 12 th November, 2008. KBP 6411-09.sxw 6 4] The issue of jurisdiction which is sought to be raised in this petition was considered by this Court and by judgment and order dated 26 th September, 2005, this Court has rejected the contention of bar of jurisdiction. This Court rejected the said contention on the basis of a decision of the Division Bench of this Court. The said order of this Court in revision application was challenged by filing a Special Leave Petition which has been dismissed. The finding of this Court in the revision application on the issue of jurisdiction has become final and the said issue cannot be re-agitated before this Court. 5] By filing present Writ Petition, the petitioner has invoked extra ordinary jurisdiction under Article 227 of the Constitution of India. The power under Article 227 of the Constitution of India is a power of superintendence which is to be exercised to ensure that the Courts subordinate to this Court act within its own bounds. In the present case, both the preliminary and final decrees passed in favour of the respondents-plaintiffs have attained finality. Even the issue of jurisdiction raised by the present petitioner is also finally concluded so far as this Court is concerned. Therefore, this is not a case where interference can be made under the Article 227 of the Constitution of India. On the contrary, filing of this Writ Petition is nothing but abuse of process of law. Hence, the petitioner will have to pay costs of this petition to the respondents who are represented by an Advocate. KBP 6411-09.sxw 7 6] The petition is accordingly rejected. The petitioner is directed to pay costs quantified at Rs.10,000/- to the 3 rd respondent. In view of the dismissal of the Writ Petition, the Civil Application does not survive and the same is disposed of. 7] At this stage the learned counsel appearing for the petitioner prays for continuation of ad-interim relief. The said prayer is opposed by the learned counsel for the respondent no.3. In the normal course this Court would have extended the protection granted earlier. But, this is a case where the issue raised in the petition is already concluded in so far as this Court is concerned. The preliminary and final decree passed against the petitioner have become final. Therefore, the prayer for continuation of ad-interim relief cannot be considered. The said prayer is rejected. ( A.S.OKA, J. )