1 (WP 3164 of 2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3164 OF 2011 Khodaram Sorab Irani (since deceased) Mr.Sam Khodaram Deolaliwala ...Petitioner Vs. Mr.Rohinton Khdaram Irani & Ors. ...Respondents ----- Mr.Tushar V. Dahibavkar i/b. Mr. Royston J. Parera for the Petitioner Mr.Jadish Karia, Senior Adcocate i/b. Mr.Sugandh B. Deshmukh for Respondent No.2. ----- CORAM: V.M. KANADE J. DATED: 5th July, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Petitioner and the Respondents. 2. By this petition, which is filed under Article 227 of the Constitution of India. 3. The Petitioner is challenging the order passed by the Trial Court dated 22.2.2011 in an application filed by the Petitioner under section 47 of the Civil Procedure Code. The Petitioner initially had filed appeal against this order. However, the Lower Appellate Court dismissed the appeal on the ground that it is not maintainable. 2 (WP 3164 of 2011) 4. The learned counsel appearing on behalf of the Petitioner submitted that the property initially belonging to one Sohrab Irani who was the owner of the said property. Thereafter his son Khodaram Sohrab Irani was appointed as an administrator and after his death Rusy @ Rustom Sohrab Irani was appointed as an interim administrator by virtue of the order passed by this Court in Testamentary Proceedings. In the meantime, a suit was filed by the Respondents-Plaintiffs for eviction of the Defendants. The Petitioner was the Defendant No.4 in the said suit. The said suit was decreed against the Defendants including the Petitioner herein and appeal was also dismissed. Orders passed by the Lower Courts were confirmed by the High Court. An SLP has been filed and status of the SLP is not known to the Petitioner's advocate. In the meantime, after the decree was confirmed by this Court, he, thereafter, filed another suit against the Respondents herein claiming that he is the tenant of the suit premises. He also filed an application under section 47 in the execution proceedings. It was contended in the Execution Proceedings that an affidavit was filed by the Interim Administrator in this Court in another proceeding viz. Writ Petition No.646 of 2003, he had agreed the 3 (WP 3164 of 2011) tenancy in favour of the Petitioner. Secondly, it was also submitted that he was the co-owner in respect of the suit property. The Trial Court while passing a reasoned order had observed that the powers of the Executing Court while exercising its jurisdiction under section 47 of the Civil Procedure Code are very limited and the Executing Court cannot go beyond the decree as far as the determination of rights of parties are concerned. Only in a case where it is alleged that the decree passed is nullity or passed by a Court which inherently does not have a jurisdiction, only in such cases the decree can be set aside. The learned counsel appearing on behalf of the Petitioner has invited my attention to the impugned order and has submitted that the observation made by the Trial Court is erroneous. 5. The submissions made by the learned counsel appearing on behalf of the Petitioner cannot be accepted. The Trial Court has given cogent reasons while passing the impugned judgment and order. Hence, no case is made out for interfering with the impugned judgment and order passed by the Lower Courts. The Lower Appellate Court was justified in holding that the appeal against the said order was not maintainable. Apart from that, the decree already has 4 (WP 3164 of 2011) been executed on 21st April,2011 and pursuant to the order passed by this Court dated 28th April, 2011, the Petitioner herein has been permitted to take his belongings from the suit premises and, accordingly, he has removed all his belongings and compliance report has been filed. Hence, Writ Petition is dismissed. (V.M. KANADE J.)