1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO. 2237 OF 2010 Aaban Samba Ghadge and others .... Petitioners Vs. Vivekanand Appasaheb Kore and others ….. Respondents With WRIT PETITION NO. 2238 OF 2010 Aaban Samba Ghadge and others .... Petitioners Vs. Suresh Appasaheb Kore and others… Respondents Mr. A.A.Valsangkar with Mr. P.J.Das Advocate for the petitioners in both the petitions. Mr.Ajay A.Joshi, Advocate for the respondent no.1 in both the petitions. ..... CORAM :- A.S.OKA, J. DATED :- 8th April , 2010. P.C.- 1 These two writ petitions can be conveniently disposed of by a common order. The facts leading to filing of these two petitions under article 227 of the 2 constitution of India are more or less similar. Therefore, for the sake of convenience, a reference is made to the facts of the case in writ petition number 2238 of 2010. 2 The petition arises out of execution of a decree for possession. The petitioners are the judgment debtors. First respondent is the decree holder and the original 2nd plaintiff. A suit was filed by Shri Shivaji Sugar Mills Ltd through official liquidator Mr.Gural Hassoor for recovery of possession of land bearing Gat no. 481 situated at village Degaon , Taluka Pandharpur , district Solapur. The suit was filed by the liquidator on behalf of the company. The first respondent is the original third defendant. Under a registered document of lease executed by the first respondent, the said company had taken the suit land. The allegation in the suit is that the suit land was sublet by the said company to the first and second defendants. The present petitioners are the legal representatives of the 2nd defendant. The suit proceeds on the footing that sub-tenancy of the first and second defendants was terminated by the petitioner. It was contended that the company was under an obligation to take over possession of the said land and to hand over the same to the first respondent who was the head landlord. Later on, the first respondent who was the third defendant transposed himself as second plaintiff. The suit was decreed on 26th February 2003. The decree for possession was passed in favour of the first respondent who was the second plaintiff. The petitioners are 3 the legal representatives of the second defendant. 3 The petitioners raised various objections to the execution of the decree by making an application under section 47 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). The first objection was that during the pendency of the suit the liquidator of the first plaintiff company expired. Though another liquidator was appointed in his place, in the suit, the substitution was not made. The suit continued to be in the name of the deceased liquidator. It was contended that as the liquidator of the sole plaintiff died and as his name was not substituted by newly appointed liquidator, the suit could not have been continued, but the Court allowed first respondent to transpose himself as the second plaintiff. It was contended that one Maruti , the predecessor of the petitioners was a tenant in respect of the suit agricultural lands on the tiller’s day. It was submitted that Civil Court had no jurisdiction to entertain and try the suit in as much as only the authorities under the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the said Act) had jurisdiction to evict the defendants. The third objection was that the suit land became a part of Gat no. 481 on finalisation of the consolidation scheme. Therefore, now the suit land cannot be identified. By the impugned judgment and order, the said objections were overruled by the trial Court. 4 4 The learned counsel appearing for the petitioners submitted that after the liquidator of the sole plaintiff company expired, the suit could not have been continued. Though there was another liquidator appointed, he did not apply for substitution. He submitted that the suit which was continued in the name of the sole deceased plaintiff was nullity. He submitted that the suit stood abated. He submitted that the order of transposing the first respondent herein as second plaintiff was illegal. He submitted that there was no contractual relationship between the first and second defendants on one hand and the first respondent on the other hand. He submitted that the second defendant was in possession of the suit land on the tiller’s day. He submitted that the issue whether the second defendant was sub-tenant of the said company can be decided only by the authorities under the said Act of 1948. He submitted that the decree cannot be executed again the petitioners as the decree is vague. He submitted that all the aforesaid issues were required to be considered in view of mandate of section 47 of the said Code. He submitted that the impugned order is illegal. 5 I have given careful consideration to the submissions. It must be noted here that the aforesaid contentions are raised by the petitioners who are the legal representatives of the second defendant. The suit was contested by the second defendant. In fact an issue of tenancy was raised by contending that Maruti, the father of the defendants was a tenant of the suit land from the 5 year 1939. It was specifically contended in the written statement that after demise of Maruti, the defendants were in possession of the suit land on the tiller’s day. The issue of tenancy was framed and was referred to the decision of the Tribunal under the said Act of 1948. The issue which specifically referred to the tribunal was whether the second defendant was entitled to protection of the said Act of 1948. The tribunal held that neither the second defendant nor his father were entitled to protection of the said Act of 1948. The said decision was ultimately upheld by the Maharashtra Revenue Tribunal. The Order of the Maharashtra Revenue Tribunal has attained finality. Thus the issue based on plea of tenancy of the second defendant has been already decided finally by the authorities under the said Act of 1948 and therefore, the said issue cannot be re-agitated in execution of the decree. 6 Another contention raised was that the liquidator of the original plaintiff company died during the pendency of the suit and that his successor was not brought on record. It is pertinent to note that the original third defendant was allowed to be transposed as the second plaintiff. The decree for possession has been passed in favour of the second plaintiff and not in favour of the company which was the original plaintiff. The trial Court framed an issue as to whether the second plaintiff was entitled to possession. While dealing with the said issue , the learned trial judge specifically observed that the ownership of the second plaintiff was not seriously challenged by the defendants. In the 6 judgment in the suit, the trial Court observed that the defendants are claiming tenancy from one Narayan and the said Narayan had admitted that the father of the second plaintiff was the owner of the suit land. Therefore in execution, the petitioners who were claiming through judgment debtors cannot challenge the title or the locus of the second plaintiff. The executing Court cannot go behind the decree. As stated earlier, during the pendency of the suit, the trial Court made a reference to the tribunal under the said Act of 1948 and the reference was finally answered by holding that the defendants have failed to establish their plea of tenancy. The said finding of the authorities has been confirmed by this Court in a writ petition filed by the predecessors of the petitioner. 7 Another contention was raised on the basis of settlement between the first defendant and the second plaintiff-decree holder. Under the said settlement, a part of the suit land was surrendered by the first defendant. There is a clear description of the suit land in the decree. Merely because the decree holders entered into settlement with one of the defendants in respect of a part of the suit land, it cannot be said that the decree was vague. 8 As stated earlier, the decree for possession has been passed directing the defendants to deliver possession to the second plaintiff. There is no 7 decree in favour of the first plaintiff. The effect of death of liquidator of the first plaintiff was considered by the district Court in the appeal preferred by the defendants against the decree for possession. The district Court referred to a direction given by the same Court in liquidation proceedings to the liquidator of the first plaintiff company to take steps for taking possession of the suit land and for handing over the same to the second plaintiff who was the landlord. Therefore, the district Court held that the suit at the instance of the second plaintiff was maintainable. If the said issue is allowed to be re-agitated in execution, it may amount to going behind the decree. The finding of the district Court has been affirmed by this Court in second appeal. 9 Hence there is absolutely no merit in the petitions and the same are rejected. JUDGE