1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 898 OF 2010 Anna Tatoba Parit. .. Petitioner Vs Ashok Jivandhar Upadhye & Ors. .. Respondents -- Shri G.S. Hiranandani i/by Shri C.G. Gavnekar for the Petitioner. Shri Amit Borkar for Respondent No.2. -- CORAM : A.S.OKA, J. DATE : 31ST MARCH, 2010 P.C: . Heard learned counsel appearing for the parties. 2. The present Petitioner is the 1st Defendant in a suit filed by the 1st and the 2nd Respondents herein. The suit was filed for possession on the basis of termination of the tenancy in accordance with Section 106 of the Transfer of Property Act, 1882. A decree of possession was passed against the Petitioner by the Trial Court. The decree has been confirmed. An appeal and the second appeal have been preferred at the instance of the Petitioner. The decree has been confirmed. 3. In the execution of the decree, an objection was raised by the 2 Petitioner. The objection was that the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the said Act) were applicable to the suit land and that the suit was filed without complying with the requirement of Section 88-B of the said Act. Therefore, it was submitted that the Civil Court inherently lacked jurisdiction to entertain the suit for eviction against the agricultural tenant. The said objection has been overruled by the Executing Court after holding an adjudication under Section 47 of the Code of Civil Procedure, 1908. 4. The learned counsel appearing for the Petitioner submitted that the provisions of the said Act were applicable to the agricultural land subject matter of the suit. He submitted that the certificate contemplated under Section 88-B of the said Act was not produced by the Plaintiff and no case was made out for grant of exemption from the provisions of the said Act. He submitted that there is inherent lack of jurisdiction and, therefore, the Executing Court has committed an error by rejecting the objections inasmuch as the decree is sought to be executed is a nullity. He submitted that the impugned order is erroneous. The learned counsel appearing for the 2nd Respondent supported the impugned order. 5. The objection of lack of inherent jurisdiction is based on factual contention that the provisions of the said Act are applicable to the suit land. If the provisions of the said Act are applicable, in absence of case being made out under Section 88-B of the said Act, the Civil Court does not 3 get jurisdiction to entertain and decide the suit for eviction against the agricultural tenant. However, in the appeal preferred by the Petitioner against the said decree for possession, the issue whether the provisions of the said Act are applicable to the suit land was considered and decided by the Appellate Court. There is a specific finding recorded by the Appellate Court in Paragraph 7 that the provisions of the said Act are not applicable to the suit land, and therefore, the suit for possession will be governed by the Transfer of Property Act, 1882. Thus, there is a finding of fact recorded while confirming the decree for possession that the provisions of the said Act were not applicable to the suit land. It is not open for the Executing Court to record a finding that the provisions of the said Act are applicable to the suit land as recording of such finding will amount to going behind the decree. 6. The objection of lack of jurisdiction is based on the factual assumption that the provisions of the said Act are applicable to the suit land. In view of the finding of the Appellate Court, the said factual contention is no longer open. The decree of the Appellate Court has been confirmed in Second Appeal by this Court. 7. No fault can be found with the impugned order in execution. The Writ Petition is rejected. (A.S.OKA, J)