1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 3670 OF 2009 (Chandrabhan J. Ahuja v. Dinanath U. Pathrabe) _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Shri S.V. Purohit, Advocate for Petitioner. Shri A. Shelat, Advocate, holding for Shri M.P. Jail, Advocate, for Respondent. CORAM : R.C.CHAVAN, J. DATED : 29 th AUGUST, 2009. 1. This petition by the tenant is directed against the orders passed by the learned Judge of the Executing Court as also the learned District Judge rejecting his objection to the execution of the decree on the ground that the premises in question were in a slum notified as such and, therefore, the suit for his ejectment could not have been filed without obtaining permission from the Competent Authority under Section 22 of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (“the Act”, for short). 2. It is not in dispute that this objection was not raised by the petitioner when the trial was proceeding and even when the decree was questioned in an appeal. This was raised for the first time when the appellate judgment was questioned in Writ 2 Petition No.5240 of 2007. By judgment dated 7-8-2008 in the said writ petition, this Court held that such an objection could not be entertained at that stage. The decree-holder/landlord started execution and in the execution, the applicant filed an application under Section 47 read with Section 151 of the Code of Civil Procedure for dismissal of the proceedings for non-compliance of the provisions of Section 22 of the Act. Relying on a judgment of this Court in Fattechand Murlidhar Shop by Proprietor v. Shrikrishna s/o Tejmalji, reported at 1984 Mh.L.J. 796, the learned Trial Judge rejected the objection and this rejection was maintained by the learned District Judge. 3. I have heard the learned counsel for the petitioner and the learned counsel for the respondent. 4. The learned counsel for the petitioner submitted that for want of permission under Section 22 of the Act, the suit itself could not have been instituted and, therefore, the decree was a nullity and the execution of such a decree could be challenged in the execution proceedings. For this purpose, he relied on a judgment of this Court in Kiran Singh and others v. Chaman Paswan and others, reported at AIR 1954 SC 340. This judgment has been considered by this Court in Fattechand Murlidhar Shop by Proprietor v. Shrikrishna s/o Tejmalji, reported at 1984 Mh.L.J. 796, in para 16. Therefore, an elaborate discussion on this point is not necessary. It is not a question of Court lacking 3 jurisdiction to try the suit. The question, which the petitioner now seeks to raise, is about conditions requisite for initiation of proceedings before the Court, i.e. one of the things required to be proved for getting a decree. This cannot be confused with absence of jurisdiction. 5. The learned counsel for the petitioner next submitted that in Tajmohamed Yakub v. Abdul Gani Bhikan, reported at 1991 Mh.L.J. 263, a Division Bench of this Court held that such an objection could be raised even in the execution proceedings. It must be noted first that when the suit was filed, the area in question was not declared as slum. It seems that the area in question was declared as slum by the notification on 26-12-1977, whereas the suit itself was filed in the year 1972. It is not clear from the recitals of facts in that case as to whether the objection to the jurisdiction of the Court was raised after such a notification was issued. Further, the Court proceeded, because it was not disputed that the house in question was in a notified slum. Such is not the present case. In this case, the factual question as to whether the premises are in a slum area or not, would have to be decided in order to invoke the bar of Section 22 of the Act and this has not been done. 6. The present case is squarely covered by the judgment of this Court in Fattechand Murlidhar Shop by Proprietor v. Shrikrishna s/o Tejmalji, reported at 1984 Mh.L.J. 796, where too 4 an objection was raised at the stage of execution. After considering several judgments, this Court held that such an objection could not be entertained and the decree was liable to be executed. I do not see as to why a different view should be taken. 7. Thus, the petition has no merit. It is, therefore, dismissed. JUDGE pdl