1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3854 of 2008 Surendra Ruia & ors. .. Petitioners versus Kanoria Industries Ltd. & ors. .. Respondents ... Mr.R.A. Thorat, Mr.Ravi Kadam with Mr.V.B. Naik i/b M/s.A.S. Dayal & Associates for the petitioner. Mr.S.G. Aney i/b M/s.Paras Kuhad & Associastes for respondent no.1. CORAM : A.M.KHANWILKAR, J DATED : 26th August 2008 P.C.: 1. Heard counsel for the parties. 2. The principal question that needs to be considered in this matter is whether the person (third party) claiming through judgement debtor can be permitted to raise any issue muchless of decree being nullity and cause obstruction to execution of decree. 3. Counsel for the petitioners fairly accepts 2 that the status of the petitioners is one of persons claiming through the defendant no.1 (Judgement Debtor). If the petitioners are claiming through defendant no.1 and the defendant no.1 has allowed the decree passed against him to become final, the question is whether persons claiming through such judgement debtor can be permitted to obstruct the execution of the decree on the argument that the decree is nullity. 4. Learned counsel for the petitioners has relied on the decisions in support of his argument, to wit: i) Mani Nirman Daruwala (Decd) by LRs Rusin Nariman Daruwala & ors. Vs. Phiroz N. Bhatena & ors. reportede in 1991 Mh.L.J. 376. (Bom) ii) Smt.Nai Bahu Vs. Lala Ramnarayan & ors. reported in AIR 1978 SC 22 iii) Carona Ltd. Vs. M/s.Parvathy Swaminathan & Sons reported in AIR 2008 SC 187 iv) Chimanlal Vs. Mishrilal reported in AIR 1985 SC 136 3 v) Sarwan Kumar & Anr. Vs. Madan Lal Aggarwal reported in (2003) 4 SCC 147. 5. However, in my opinion, the decision pressed into service by the respondent of the Apex Court, in the case of S. Jain Vs. 3rd Addl. District Judge, Mathura & ors. reported in 2001(10) SCC 504, squarely answers the point in issue. For, even in that case, the person who was obstructing the execution of the decree was claiming to be subtenant inducted by the main tenant (Judgement Debtor). The Apex Court held that the sub-tenant did not have any independent right to raise any objection before the executing court and instead was legally bound by the orders passed against the main tenant (judgement debtor) against whom the decree had become final. Significantly, in that case also the third party (sub-tenant) had pleaded that the decree as passed was nullity. The Apex Court however was pleased to set aside the order of the High Court which had directed the lower court to consider the objection at the instance of third party (sub-tenant) who was claiming through the Judgement Debtor and not in his own rights. 7. Counsel for the respondent has also relied on another decision of the Apex Court reported in 4 1998 (4) SCC 543 (see paras 5, 13 to 15 thereof) to contend that the execution of the decree can be obstructed "only by person who is claiming in his own right" with regard to the suit property. 8. On perusal of the decisions pressed into service by the counsel appearing for the parties, I am in agreement with the stand taken by the respondents that the objection regarding decree being nullity could have been raised only by the judgement debtor himself or person claiming right in the suit property on his own and not by a person who is claiming through the Judgement Debtor. If the person is obstructing the execution of decree who is claiming through judgement debtor and more particularly when the judgement debtor allows the decree to attain finality, the argument though of decree being nullity cannot be entertained at the instance of such person. 9. To get over this position, counsel for the petitioner would contend that in a case where the Judgement Debtor allows the decree to become final in collusion with the Decree Holder, it is open to the third person even if claiming through the Judgement Debtor, to raise issue of nullity of the decree which issue would go to the root of the 5 matter. In the first place, no case of fraud or collusion was made out before the court below, which is a question of fact. Be that as it may, this argument clearly overlooks the settled legal position that the person claiming through the judgement debtor is obliged to suffer the same consequence in execution of the decree which has attained finality against the judgement debtor. Thus understood, all the issues raised by the petitioners (third party) to challenge the decree being nullity will have to be discarded; as they were not claiming right in the suit property on their own but through the Judgement Debtor who had allowed the decree to become final. Accordingly, the petition is devoid of merits. Hence, the same is dismissed. 10. At this stage, counsel for the petitioners submits that the petitioners be granted atleast four weeks time to take up the matter in appeal before the Apex Court. As the request is reasonable one, it is ordered that status quo as of today with regard to the suit property be maintained by the parties for a period of four weeks from today. Petitioners to file usual undertaking in this court within one week from today, if the petitioners desire to avail of this arrangement. 6 . Ordered accordingly. (A.M.KHANWILKAR, J)