1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRA No. 19/2010 Abdul Rafique s/o Abdul Mujib Vs. Madhukar Vitthalrao Bode Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. M.P. Khajanchi, Advocate for the applicant. Mr. S.S. Ghate, Advocate for the respondent. CORAM: K. U. CHANDIWAL, J. DATE : 10th JUNE 2010. 1] Heard finally. Rule returnable forthwith. Counsel waives service. 2] The suit for specific performance of contract concerning lease-hold plot allotted by MHADA to the defendant was dismissed and challenge to the same in the Appellate Court was entertained and the Appellate Court decreed the suit. The appellate Court by order dated 25.10.2008 while decreeing the suit directed to deposit balance amount of consideration of Rs. 95,000/- within a period of one month from 24.10.2008 and to obtain no objection certificate from MHADA, Nagpur within a period of three months. The defendant to execute the sale deed of the suit plot in favour of plaintiff in terms of 2 agreement dated 13.6.2003 after compliance of these two conditions by the plaintiff. 3] The plaintiff having felt that defendant is not complying with executing sale deed was required to move Special Darkhast no. 3/2009. An objection was recorded by the defendant in terms of Section 47 of the Code of Civil Procedure that the execution of the decree under challenge under Rules 24 and 25 of the MHADA Act deal with the directions and obtaining no objection in such eventualities in the said facts would not emerge. Learned counsel submitted that Section 47 of CPC will be applicable to raise objection as the decree by way of appellate court judgment is a nullity as the appellate court could not direct to obtain no objection certificate from MHADA. 4] Learned counsel for the applicant - defendant placed reliance to the judgment of the Apex Court in the matter of Dhurandhar Prasad Singh Vs. Jai Prakash University and others reported in (2001) 6 SCC 534. The observations of Their Lordships of the Apex Court in 3 paragraph 24 reads as under:- “The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. In the case on hand, the decree was passed against the Governing Body of the College which was the defendant without seeking leave of the court to continue the suit against the University upon whom the interest of the original defendant devolved and impleading it. Such an omission would not make the decree void ab initio so as to invoke application of Section 47 of the Code and entail dismissal of execution. The validity or otherwise of a decree may be challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that the original defendant absented 4 himself from the proceeding of the suit after appearance as he had no longer any interest in the subject of dispute or did not purposely take interest in the proceeding or colluded with the adversary or any other ground permissible under law. '' 5] Having read the observations of the Apex Court the position is quite clear. The manner, in which, the present applicant moved in terms of Section 47 of Code of Civil Procedure was not competent exercise. Terms given in the order passed by the Appellate Court to obtain no objection certificate from the MHADA, does not mean that MHADA was directed to regularize the act of the plaintiff. To get the property as per the MHADA Rules, incorporate payment of regularization charges and it is indeed spelt out in the permission granted by MHADA by way of a no objection certificate dated 19.1.2009 that NOC was subject to any challenge from the defendant by way of any Second Appeal. The plaintiff was to get the document registered under Registration Act by paying proper stamp duty and the plaintiff has also to pay regularization charges to tender requisite objections. It 5 is thus clear that on the obligation cast in the light of no objection certificate, the plaintiff is required to get document registered and remit requisite charges. 6] It is difficult to digest that the direction of the first Appellate Court seeking no objection is void ab initio or a illegality, even if it is illegality forum for the defendant was at some other place and could not be before the executing Court. Learned counsel has travelled beyond the scope of the decrees by the contention raised in terms of the application (Ex. 12). I do not find any merit in the revision application. There is no illegality or irregularity perversity on the part of the Executing Court in rejecting the application. The same is dismissed. No costs. Rule is discharged. (K.U. Chandiwal ) JUDGE Ambulkar.