Shri. Yasin Rahimtulla Jamadar vs Smt. Amirbi Badshaha Jamadar And ...
2023 Latest Caselaw 9260 Bom

2023:BHC-AS:25542
                                                                               56-wp1679-2020.doc


                    AGK
                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION

                                     WRIT PETITION NO.1679 OF 2020


                    Yasin Rahimtulla Jamadar                       ... Petitioner
                               V/s.
                    Amirbi Badshaha Jamadar & Ors.                 ... Respondents


                    Mr. Ajit M. Savagave for the petitioner.
                    Mr. Uday P. Warunjikar for the respondents.



                                                 CORAM : AMIT BORKAR, J.

                                                 DATED     : SEPTEMBER 4, 2023
                    P.C.:

1. The judgment debtor has filed present writ petition challenging order passed by the Executing Court issuing possession warrant under Order 21 Rule 35 of the Code of Civil Procedure, 1908.

2. According to the petitioner, the decree under execution is ex parte decree. His suit for partition of the suit property is decided and it is held that the petitioner has share in the property.

3. The objection raised by the petitioner can be treated as objection under Section 47 of the Code of Civil Procedure, 1908. It is well settled that the scope of inquiry under Section 47 is to adjudicate whether the decree is nullity or has become inexecutable due to subsequent change in law or conduct of the

56-wp1679-2020.doc

parties.

4. In the facts of the case, the decree sought to be executed cannot be termed as decree as the decree is neither against dead person nor passed by the Court having no inherent jurisdiction.

5. However, it would be in the fitness of things that the petitioner to apply before appropriate Court for getting appropriate relief in relation to ventilation of his grievance. According to the petitioner, his application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 is pending. It will be open for the petitioner to apply before said Court for appropriate relief. However, considering the microscopic scope of Section 47 of the Code of Civil Procedure, 1908, the discretion exercised by the Trial Court cannot be termed as perverse.

6. The writ petition, therefore, stands dismissed. No costs.

(AMIT BORKAR, J.)