1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 292 OF 2010 IN WRIT PETITION NO.5898 OF 2009 WITH CIVIL APPLICATION NO.15223 OF 2010 Babai w/o Rangnath Gund, Age: 71 years, Occ: Nil, R/o. Shrigonda Sahakari Sakhar Karkhana, Dhokrai, Kailash Nagar, Tq. Shrigonda, Dist.Ahmednagar, Through her Power of Attorney Santosh s/o Rangnath Gund, Age: 31 years, Occ: Agri., R/o. Shrigonda Sahakari Sakhar Karkhana, Dhokrai, Kailash Nagar, Tq. Shrigonda, Dist.Ahmednagar. ...APPELLANT VERSUS Haussrao s/o Arjun Waje, Deceased through L.rS. 1A. Haribhau Hausrao Waje, since deceased Through L.Rs. 1Aa. Girjabai w/o Haribhau Waje, R/o. Belwandi, Tq. Shrigonda, District Ahmednagar & Ors. ...RESPONDENTS .... Smt. Madhaveshwari D. Thube-Mhase, Advocate for appellant/applicant. .... 2 CORAM: NARESH H. PATIL & K.K. TATED, JJ. DATE : 29TH OCTOBER, 2010. PER COURT : 1. Heard learned Counsel for the appellant. 2. The appellant was the original defendant No.2 in a suit for specific performance. The appellant claims to have purchased the suit land from original defendant No.1. By a judgment dated 16-09-1988 passed in R.C.S. No. 262 of 1979, the learned Civil Judge, Junior Division, Shrigonda, District Ahmednagar decreed the suit. The sale of suit land by defendant No. 1 in favour of defendant No.2 ( the appellant herein) was declared null and void. Defendant No. 1 was directed to execute the sale deed of the suit land in favour of the plaintiff. The appellant challenged this judgment and decree in Regular Civil Appeal No. 449 of 1988. By a judgment and order dated 30-04-1994, 3rd Additional District 3 Judge, Ahmednagar dismissed the appeal. 3. The learned Counsel submits that the Second Appeal was preferred by the appellant in the High Court, which came to be dismissed in default. 4. The appellant raised objection during the execution of the decree. By an order dated 27-03-2006 the Civil Judge, Junior Division rejected the application filed by the appellant. Said order was challenged in Writ Petition No.6184 of 2006. By an order dated 02-05-2009 the learned Single Judge remanded the matter back to the Executing Court by directing the Executing Court to afford hearing to both the sides and then decide the application. 5. By an order dated 07-08-2009 passed below Exhibit-31 in R.C.S. No. 40 of 1998 the learned Civil Judge, Junior Division, Shrigonda, rejected the application. This order was challenged by the appellant before the learned Single Judge in Writ 4 Petition NO.5898 of 2009. By an order dated 18-10-2010 the learned Single Judge dismissed the said Writ Petition. Present Letters Patent Appeal arises out of the said order. 6. The learned Counsel for the appellant submitted that in the facts of the case, the appellant is entitled to raise objection during the execution proceedings under Section 47 of the Code of Civil Procedure in respect of inexecutability of the decree considering the provisions of Section 19 of the Specific Relief Act, 1963. The appellant was stranger to the transaction. No issue was framed against the appellant. According to the learned Counsel, order of cancellation of agreement of sale executed in favour of the appellant declaring null and void, was jurisdictional error, which the appellant could have raised during the execution proceeding. 7. We have perused the judgment and order passed 5 by the trial Court, appellate Court, learned Single Judge and the impugned order, pleadings of the parties. We have even considered the provisions of Section 19 of the Specific Relief Act, 1963. The learned Counsel in support of her submissions, placed reliance on the following reported judgments. (1) Raj Kumar vs. Harbans Lal & Ors. A.I.R. 1978 Punjab & Haryana, 186. (2) Chandan Mall Bapna vs. Abdul Gani Meah, A.I.R. 1976 Gauhati, 54. 8. We have perused the above cited reported Judgments. 9. We do not find any apparent error in the view adopted by the learned Single Judge in rejecting the Writ Petition. The Executing Court observed that it cannot go behind the decree and the decree does not appear to be null and void or passed in violation of the mandatory provisions of law. 6 10. In the facts of the case, we are of the view that the appellant could not raise the issue or objection in respect of the applicability of provisions of Section 19 of the Specific Relief Act, 1963. Letters Patent Appeal stands dismissed. 11. In the light of dismissal of the Letters Patent Appeal, nothing survives for consideration in the Civil Application and the same is dismissed. sd/- sd/- [K.K. TATED, J.] [NARESH H. PATIL, J.] SUT/OCT10/lpa292.10