1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION FIRST APPEAL NO.2235 OF 2008 1. K. Madhavan Pillai & Ors. ...Appellants. v. Sunil Jawaharlal Sharma & Ors. ...Respondents. Mr.Anil G. Singh i/by D.R.Shah, advs. For the Appellants. Mr.J.J.Xavier, adv. For the Respondent No.3. CORAM : J.H. BHATIA, J. DATED : 7th August , 2009 P.C. 1 To state in brief, the present respondent no.2 had filed long cause suit no.895/83. In that suit, defendant nos.1 to 4 were shown to have encroached upon the property of respondent no.2/plaintiff and to have raised unauthorised construction. Besides other reliefs, plaintiff therein sought a direction against the defendant no.5/Municipal Corporation to demolish, pull down and remove unauthorised construction standing on the suit property, which was then in occupation of said defendant nos.1 to 4. Those defendant nos.1 to 4 did not appear and exparte decree was passed under Order VIII Rule 5 of the C.P.C. Besides other reliefs, relief as per prayer clause (e) against the Municipal Corporation was also granted. In view of that direction, Municipal 2 Corporation issued notice under Section 488 of Bombay Municipal Corporation Act for demolition. After that present appellants filed long cause suit no.6207/03 contending that they were occupying premises on the suit property as tenants of the respondent no.1 and were regularly paying rent to him. Appellant no.3 claims that he is in possession since 1969 and the appellant no.1 claims to be in possession since 1989, appellant no.2 claims to be in possession since 1995 and the appellant no.4 claims to be in possession since 1996. They claimed to have taken possession of the premises from different persons. Incidentally none of their vendors appears to be defendant in the earlier suit. According to them, without making them parties and without their knowledge about that litigation, exparte decree was obtained which is now being executed by the Municipal Corporation. Therefore, they, in the suit, claimed declaration that notice issued under Section 488 is bad in law and should not be implemented. The trial Court dismissed the suit holding that whatever objections the present plaintiffs/appellants may have about that decree, can be taken in execution and not by filing separate suit. Therefore, they have filed this appeal. 2 It may be noted that in appeal from order no.222/04 in Notice of Motion No.4/04 arising out of same suit, this court had passed 3 the order on 15th March, 2004. Relevant part of that order reads as follows: “1 ..............The Corporation shall not demolish the structure pursuant to the decree without the permission from the executing Court. It is however, clarified that the Corporation is at liberty to adopt such proceedings in respect of the structure for any other reasons de-hors the said decree. 2 This order is without prejudice to all the rights and contentions of all the parties. All rights and contentions of the parties before the executing Court are kept open.” 3 On hearing the learned counsel for the parties, it appears that the original plaintiffs in the earlier suit have never filed any execution proceedings and if no execution proceeding is filed, present plaintiffs/appellants would not get any right of raising any objection to the execution as per that exparte decree. The Municipal Corporation has been directed to demolish and remove the unauthorised structures and encroachment and the Municipal Corporation has issued the notice under Section 488 in compliance with that direction. The learned counsel for the Municipal Corporation contends that if the Municipal Corporation does not act upon that direction, it may be held guilty of contempt of the Court. On the other hand, the learned counsel for the appellants contends 4 that if without any execution proceedings, direction is complied, present appellants shall be left without any remedy. In my considered opinion, the order passed by this Court on 15th March, 2004 in Appeal from Order No.222/04 gives the solution to the Corporation. As per that direction, Corporation may approach the executing Court seeking permission to proceed with action as per the direction given to the Corporation in the earlier suit and if such application is filed, the present appellant may approach that executing Court with all the objections which they may have and such objections may be decided as if objection are taken in execution. As far as dismissal of suit is concerned, the learned trial Court was right that the objections, which the plaintiffs want to raise in the present litigation can be taken only in the execution proceedings and not by filing separate suit. 4 For the aforesaid reasons, appeal stands disposed off with the following directions: i Corporation shall act as per the above referred direction given by this Court on 15th March, 2004 in Appeal from Order No.222/04 and whenever it approaches, the Executing Court for permission, the present plaintiffs/appellants shall be at liberty to take all objections, which may be taken in execution proceedings. Whenever such 5 application for permission shall be filed by Municipal Corporation, notice of the same shall be given to the present appellants as well as the original plaintiff/decree holder in the earlier suit no.895/83. The permission of executing Court will be necessary if the Municipal Corporation wants to act as per the direction given in the decree in the said suit and not if independently of that decree , Municipal Corporation wants to take any action under the law. 5 As the appeal itself is disposed off, Civil Application No. 5750/08 does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)