1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 6737 OF 2009 Laxmibai Babanrao Harale .. PETITIONER VERSUS Rahata Vividh Karyakari Sahakari Society Ltd. .. RESPONDENT Mr. V.D. Hon, Advocate for the petitioner. Mr. N.R. Bhavar, Advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 27 th APRIL, 2010. PER COURT : 1 Order passed by the Jt. Civil Judge, Jr.Dn., Rahata on 25-8-2009 rejecting the application exh. 25 in Regular Darkhast no. 24/2008 is subject matter of challenge in this petition. 2 Respondent is the decree holder who has secured a decree against the plaintiff in respect of recovery of possession of the suit premises. Decree was passed by the trial court in favour of the respondent / decree holder on 24-10-2002. Further challenge raised to the decree by the judgment debtor 2 before the first appellate court was turned down so also revision application tendered by the judgment debtor has been rejected on 24-2-2009. Decree in respect of eviction of the petitioner / tenant / judgment debtor has attained finality. Respondent / society with a view to secure possession of the premises, presented application seeking execution of the decree. In the pending darkhast, petitioner / judgment debtor filed an application requesting the executing court not to issue warrant requiring the judgment debtor to handover possession of the disputed property until disposal of Second Appeal no. 721/2008. It is contended by judgment debtor that the respondent / decree holder is not owner of the premises and there is dispute between one Sanjay Pipada and the respondent. Suit was presented against the society by said Sanjay claiming redemption of mortgage. Decision in the suit was rendered against said Sanjay and the first appeal presented to the first appellate court has also been turned down. Second Appeal No. 721/2008 is presented against the decree passed by the first appellate court and the said appeal is pending. One Civil Application no. 10326/2002 came to be presented by said Sanjay in the pending second appeal wherein this court has issued restrain order against the respondent herein requiring the respondent not to create any third party interest in respect of the suit property and not to change the nature of the property till 3 decision in the second appeal. In view of pendency of second appeal, it is contended that the instant darkhast against the petitioner / judgment debtor is not executable. Executing court after considering rival contentions raised by the parties, directed the decree holder to file undertaking to the effect that the decree holder / respondent herein shall not create any third party interest or will not change nature of the suit till final disposal of the second appeal. The executing court refused to stay execution proceeding. 3 Learned counsel for the petitioner while assailing the order passed by the executing court contended that until decision is rendered in the pending second appeal between Sanjay and the respondent herein, the decree passed against the petitioner is not executable and the question raised by the petitioner herein needs to be adjudicated. Learned counsel for the petitioner has placed reliance on the judgment in the matter of Century Textiles Industries Ltd. vs. Deepak Jain and another reported in 2009(5) Mh.L.J. 591 and contended that the executing court has jurisdiction to determine the controversy as to who is entitled to secure execution of the decree. 4 I have perused the impugned order and heard the arguments 4 advanced by learned counsel for the parties. In the instant matter, petitioner admittedly is not party to the proceedings which are carried to the High Court in second appeal. There is decree passed against the petitioner who claims himself to be the tenant. Decree passed in tenancy proceeding has attained finality. Contentions raised by the petitioner that the objection raised by him under section 47 of the Code of Civil Procedure needs to be gone into by the trial court, need not be considered for the reason that there is decree passed by competent court in respect of his eviction. It also shall be noted that relationship of landlord and tenant between petitioner and respondent is not disputed. Reliance placed on the reported judgment of the Apex Court is misplaced. 5 Another aspect that require to be taken into account is that the decree is passed against the petitioner / tenant in the rent proceedings. It is clear that the proceedings under the rent act seeking eviction of the tenant can be initiated by the landlord who has inducted the tenant in possession. The term landlord necessarily need not be equated with the ownership and title of the premises. The dispute pending between the respondent and one Sanjay Pipada is of entirely different character and the person who has initiated the dispute has not come forward objecting to the execution of the 5 decree. It also further cannot be controverted that in view of the finality attached to the rent proceedings the petitioner is tenant inducted by the respondent. Objection raised by the petitioner to the executability of the decree is without any ground and is presented with a view to delay execution of the decree. Application has been rightly turned down by the executing court. There is no need to cause any interference in exercise of extra ordinary jurisdiction under Article 227 of the Constitution of India. Writ petition deserves to be rejected and the same is accordingly rejected. 6 In view of dismissal of petition, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/wp6737.09.odt