1 wp-3971.97 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3971 OF 1997 Dr. Arvind Jamnadas Shah & Others. .. Petitioners Vs Smt. Rukmini Balkrishna Jadhav. .. Respondent -- Mrs. Sunanda Kumbhat for the Petitioners. -- CORAM : A.S.OKA, J. DATE : 9TH DECEMBER, 2010 ORAL JUDGMENT : . Heard learned counsel appearing for the Petitioners. The challenge by the Petitioners in this Writ Petition under Article 227 of the Constitution of India is to the judgment and order dated 8th January, 1997 passed by the Appeal Bench of the Court of Small Causes. 2. The brief factual background is necessary to appreciate the submissions made by the learned Counsel appearing for the Petitioners. 3. The Petitioners are the legal representatives of the Original Plaintiffs. The Plaintiffs filed a suit for eviction in the Court of small Causes against the Defendant Shri Krishnaji Sakharam Shirke. The suit for 2 wp-3971.97 possession was decreed. An execution application was filed. In the execution, Smt. Muktabai R. Pawar and Smt. Sakhubai L. Chandane obstructed the execution of the decree and, therefore, the Plaintiffs were required to take out obstructionist notice to remove the obstructionists i.e. the said two persons. It appears that there was a settlement recorded in the proceedings of the obstructionist notice. By a consent order, the notice was made absolute. However, without accepting the contentions of the obstructionists, the Plaintiffs agreed not to execute the order passed in the obstructionist notice during the lifetime of the obstructionists and the obstructionists were granted irrevocable license to occupy the suit premises during their life time. 4. It appears that the Respondent in this Petition took out an Interim Notice No.1140 of 1996. It was contended that the decree passed in the obstructionist notice was obtained by practicing a fraud and the same was nullity. It was contended that the legal representatives of the original defendant were not brought on record. The present Plaintiffs also filed an Interim Notice No.797 of 1997. In the interim notice, it was pointed out that both the obstructionists have expired and, therefore, the present Petitioners were entitled to the possession warrant for executing the order passed in the obstructionist notice. Both the notices were taken up together by the Executing Court for hearing. The notice taken out by the Respondent was discharged and the notice taken out by the legal representatives of the Plaintiffs was made absolute. Two separate revision 3 wp-3971.97 applications were preferred by the Respondent before the Appeal Bench of the Court of Small Causes. The Revision Applications were allowed by the impugned order. 5. The learned counsel appearing for the Petitioners submitted that the decree passed in the suit had attained finality and even order passed in the obstructionist notice had become final. She submitted that even according to the case of the Respondent, she claimed to be the legal representative of one of the obstructionists and, therefore, she had no locus or right. The learned counsel appearing for the Petitioners submitted that the Revision Applications were not maintainable and in any case, no interference could have been made at the instance of the Respondent. None appears for the Respondent. 6. I have considered the submissions. The decree for eviction has become final. The order passed in the obstructionist proceedings records that the obstructionist notice was made absolute. However, on an humanitarian considerations, the said Muktabai and Sakkubai were granted irrevocable licence to use the suit premises during their lifetime. 7. The present Respondent claims to be an intervener. The contention of the intervener is that she was the legal representatives of the original tenant and she had obtained a heirship certificate. 4 wp-3971.97 8. The Appellate Court has completely glossed over the fact that there was no challenge by the original Defendant or by the Respondent to the decree passed in the suit or to the subsequent order was passed on the obstructionist notice taken out by the Petitioners to remove the obstruction of the said Muktabai Pawar and Sakkubai Chandare. In fact, the Respondent had no locus to challenge the arrangement which had arrived at between the decree holder and the obstructionists in the obstructionist notice. There is no finding recorded in the impugned order that the Respondent has any independent right. The Respondent claimed that she was the daughter of the original deceased tenant and her brother was the Defendant. In the circumstances, the impugned order of the Appeal Bench of the Court of Small Causes is illegal and deserves to be quashed and set aside. 9. Hence, I pass the following order. The rule is made absolute in terms of prayer clause (a). There will be no orders as to costs. (A.S.OKA, J)