Order passed by Civil Court is amenable to scrutiny by the High Court: Bombay High Court

An order passed by the Civil Court is amenable to scrutiny by the High Court only in exercise of jurisdiction under Article 227 of the Constitution of India, held, A. S. CHANDURKAR AND SMT.PUSHPA V. GANEDIWALA, JJ; while adjudicating the matter in Ramdayal S/o Gulabchand Khandelwal v. Mahendra S/o Badrinarayan Khandelwal; [WRIT PETITION NO.3710/2005].

The predecessors of the appellants had filed a suit against the predecessor of the respondents who was described as a licensee for his eviction along with a further prayer for restoration of possession of the suit property which consisted of a tiled room along with kitchen. During the pendency of the said suit the parties entered into a compromise by which it was undertaken by the defendant that in Diwali-1987 he would vacate the suit premises. On failure to vacate the same the plaintiffs were entitled to execute the said decree and recover possession. The compromise decree was accordingly passed in terms of the compromise. Since the defendant did not vacate the suit premises as per the compromise-deed the plaintiffs filed execution proceedings. In the said execution proceedings the judgment debtor raised an objection to the maintainability of the execution proceedings, reasons for which are not required to be gone into. In short, it was the case of the judgment debtor that the decree passed on compromise was not executable and hence the execution proceedings were liable to be dismissed. The Executing Court upheld that objection and dismissed the execution proceedings by holding the same to be not maintainable in view of the fact that the decree was not executable. The decree holders challenged that order before the Appellate Court but that appeal was dismissed as not maintainable. The decree holders then filed a Writ Petition under Articles 226 and 227 of the Constitution of India challenging the order passed by the Executing Court.

The Court upon considering the aforesaid facts stated that; “Mere fact that it was admitted cannot be a reason to preclude the Court for examining the jurisdictional aspect of its tenability especially when the objection raised is that in law the letters patent appeal itself was not maintainable. Accordingly, the preliminary objection raised to the maintainability of the letters patent appeal is upheld. The civil application is allowed. The letters patent appeal is dismissed as not maintainable. Needless to state that the appellants are free to seek redressal of their grievances that were raised in the letters patent appeal by initiating appropriate proceedings.”

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