IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7871 OF 2006 Mr.Pravin Dattatraya Natu ...Petitioner Versus Mrs.Sunita Sudhakar Nerkar ...Respondent ...... Mr.S.N.Chandrachood for Petitioner. Mr.A.P.Parlikar for Respondent. ...... CORAM: P.B.MAJMUDAR, J. CORAM: P.B.MAJMUDAR, J. CORAM: P.B.MAJMUDAR, J. DATED: MAY 2, 2008. DATED: MAY 2, 2008. DATED: MAY 2, 2008. P.C. P.C. P.C. 1. Heard. 2. Rule. Mr.Parlikar waives service of rule on behalf of the Respondent. 3. With the consent of the learned Advocates, matter is disposed of today itself by way of final hearing. 4. By way of this Petition, the Petitioner has challenged the order passed by the Executing : 2 : Court dated 26th July 2006 by which the Application submitted by the Petitioner/Judgment Debtor has been rejected by the learned Trial Judge. The Respondent/Decree Holder had instituted proceedings being Special Civil Suit No.494/1987 against the Petitioner for getting possession of the suit premises on various grounds. The Suit ended in a compromise decree between the parties dated 12th March 1993. The decree holder (present Respondent) thereafter instituted execution proceedings which is numbered as Special Darkhast No.238/2004. The present Petitioner/original Judgment Debtor resisted the said execution application on the ground that the decree passed by the Trial Court is without jurisdiction and that the Court had no inherent jurisdiction to decide the Suit, as the Suit against the Judgment Debtor who was the original Defendant in the Suit was on the basis that he was a licensee and that such proceedings are maintainable before the Small Causes Court, Pune. As against that, the decree was passed by the regular Court. The Executing Court overruled the objection by observing in Para 3 of the Order that the parties have compromised the Suit on 12th : 3 : March 1993 and that both the sides have waived their allegations regarding jurisdiction in view of the settlement arrived at. The learned Trial Judge found in para 3 that the Defendant by compromising the matter, waived his claim that the Court had no jurisdiction and that the conduct of the Defendant (Judgment Debtor/present Petitioner) in signing the compromise amounts to admission of jurisdiction of the Court on his part. The Trial Court also found that the decree is passed on 12th March 1993 and the execution proceedings are filed on 13th April 2004 and that the Judgment Debtor has raised the objection after lapse of eleven years. It is the aforesaid order which is impugned at the instance of the Judgment Debtor by way of this Writ Petition under Article 227 of the Constitution of India. 5. The learned Trial Judge has also rejected the Application given by the Petitioner for reviewing the said order. The Judgment Debtor also gave application at Exhibit 11 for framing preliminary issue as regards the maintainability of the execution proceedings on the point of jurisdiction. The Trial Court also rejected the : 4 : said Application Exhibit 11 by his order dated 27th September 2006, which is also impugned in this Petition. 6. Learned Counsel for the Petitioner vehemently submitted that so far as the question of lack of inherent jurisdiction is concerned, it can be raised at any point of time and that simply because the Suit ended by way of settlement, would not mean that even if the Court had no jurisdiction, by settlement of the dispute, jurisdiction is conferred upon the Court, which lacks inherent jurisdiction. 7. Learned Advocate for the Respondent, on the other hand, submitted that the Suit was filed before the appropriate Court and the Trial Court, therefore, was competent to decide the Suit and it was not lacking inherent jurisdiction. 8. It is required to be noted that sofar as the factual aspect whether the Trial Court at the time of passing consent decree was having inherent jurisdiction, has not been dealt with by the : 5 : learned Trial Judge while deciding the execution application. Considering the said aspect of the matter, learned Counsel for the Respondent has submitted that he has no objection if the Executing Court is directed to give finding on the issue as to whether the Court which passed decree was competent to pass such decree and whether it had inherent jurisdiction to pass such decree. Since on this aspect, the Executing Court has not addressed itself, with the consent of the parties, the impugned orders are set-aside. The matter is sent back to the Executing Court to decide the point in issue as to whether the Trial Court had inherent jurisdiction to decide the dispute in question. 9. It is clarified that this Court has not expressed any opinion on this point and this point is kept open only in view of the fact that no finding is given by the Executing Court in this behalf, especially when the Executing Court has overruled the objection mainly on the ground that the original Defendant had settled the dispute and therefore impliedly admitted the jurisdiction, : 6 : which view is not sustainable as lack of inherent jurisdiction can be examined by the Court at any point of time. 10. Under these circumstances, the matter is sent back to the Executing Court to decide the question of jurisdiction and to find out whether the Trial Court was having jurisdiction to decide the dispute. The Executing Court shall proceed to decide the application in accordance with law. Since the original decree is passed long back, the Executing Court may dispose of the Application on its own merits and as per the observations made hereinabove within a period of three months from the receipt of writ of this Court. Both the sides will be at liberty to point out their say before the Executing Court and the Executing Court shall decide the aforesaid aspect denovo. 11. Petition accordingly allowed to the above extent with no order as to costs. Rule made absolute to the above extent. : 7 : 12. Writ to be sent to the Trial Court forthwith. P.B.MAJMUDAR, J.