Bombay HC – Executing Court Cannot Revisit Jurisdiction in Section 47 CPC Obstruction Petition
The phrase “The difficulties of a litigant in India begin when he has obtained a decree” was first observed by the Privy Council back in the year 1872 in General Manager of the Raj Durbhunga Versus. Coomar Ramaput Sing 1 and tragically, the observations made centuries ago is still a reality. The delay in Court systems and the subsequent struggle to execute decrees is a well recognised systemic issue in the legal system.
Petitioner/Applicant has presented obstruction to execution of the decree dated 14 August 1974 passed in Civil Suit No. 8 of 1968. Petitioner/Applicant is aggrieved by rejection of his Application at Exh 122 filed in Darkhast No. 10 of 1993 seeking dismissal of execution proceedings under Section 47 of the Code on the ground that the decree is a nullity as the same is passed by the Court not having jurisdiction. Petitioner/Applicant is also aggrieved by the Executing Court permitting the Decree Holders to lead evidence in absence of filing of affidavit-in reply to the Obstruction Application. I first proceed to consider correctness of order dated 14 July 2015 passed by the Executing Court on Application at Exh-122 filed under Section 47 of the Code seeking dismissal of the executing proceedings.
Petitioner/Applicant’s Application at Exh-122, filed under Section 47 of the Code, was premised on the plea that the suit property are ‘premises’ within the meaning of Section 5(8) of the Bombay Rent Act and that provisions of Bombay Rent Act were applicable to the suit property as well as to the parties to the lease. It was further contended that only Small Causes Court had jurisdiction to try and entertain the eviction suit. It was therefore contended that the decree passed by the Page No. 14 of 45 16 October 2026 Uploaded on – 16/10/2026 Downloaded on – 19/10/2026 09:15:29 Renuka cra-394-2015.docx District Court was without jurisdiction and therefore a nullity and hence the same cannot be executed.
After the original Defendant did summersaults on the issue of applicability of provisions of Bombay Rent Act, it is now the turn of Petitioner/Applicant who has presented an obstruction to execution of the decree. He now seeks to raise a contention that since suit premises were let out for storage of coal, which is not an agricultural use, the same are ‘premises’ within the meaning of Section 5(8) of the Bombay Rent Act. Issue for consideration is whether Petitioner/Applicant can be permitted to raise this issue. The answer, to my mind, appears to be in the negative for variety of reasons.
Thus, while deciding Petitioner’s Application under Order XXI Rule 97 and 101 of the Code, the Executing Court would decide “all questions arising between the parties to a proceeding on an Application under Order XXI Rule 97”. Thus, limited inquiry to be conducted by the Executing Court while deciding Petitioner’s Application under Order XXI Rule 97 is his right to occupy the property dehors the decree. In that Application, the Executing Court is not supposed to decide whether the decree has been passed in accordance with law or whether the Court passing the decree had jurisdiction to try or entertain the suit. The Executing Court cannot go behind the decree and decide the issue of jurisdiction while deciding objection raised by an obstructionist who claims independent right to occupy the suit property. This is particularly because the issue of jurisdiction has already been decided by the Trial Court and also by this Court.
Judgment dated 16.10.2026 of the High Court of Bombay in Civil Revision Application No.394 of 2015 with Writ Petition No.5401 of 2015 – Samee Dinkarrao Javalekar Vs. Gulab Haribhau Ladkat and others with connected matters.
