IMPORTANT POINT
Revisional court legally obliged to examine legality and correctness of findings of the Executing court on merits.

JUDGMENT

Abhay Manohar Sapre, J.

1) Leave granted.

2) These appeals arise from the final judgment and order dated 21.07.2017 & 26.07.2017 passed by the High Court of Judicature at Bombay in Writ Petition No.6733 of 2017 whereby the High Court allowed the writ petition filed by the respondent herein, set aside the order dated 26.09.2016 passed by the Small Causes Court, Appellate Bench, Mumbai in R.A. No.333/2015 and restored the order dated 28.10.2015 of the Executing Court in Execution Application No.31/2013 in R.A.E. Suit No.872/2007.

3) The issue involved in these appeals is short. Few facts, however, need mention to appreciate the issue, which is the subject matter of these appeals.

4) The appellants are the defendants and the respondent is the plaintiff in the civil suit out of which these appeals arise.

5) The issue arises out of eviction suit, which resulted in passing of a compromise decree followed by its execution. So far as the present appeals are concerned, they arise out of an order passed in the execution proceedings.

6) The Respondent(plaintiff) filed a suit (No.872/2007) in the Court of Small Causes at Mumbai against the appellants(defendants) for their eviction from the suit premises. The eviction was claimed inter alia on the ground of unauthorized user of the suit premises by the appellants (defendants) which, according to the respondent (plaintiff), amounted to the change of user under the provision of Section 16(1)(n) of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as “the Act”). It is not necessary to set out the facts in the pleadings of the parties.

7) During the pendency of the suit, the parties, i.e., the appellants and respondent, compromised the matter and accordingly filed their consent terms on which the compromise was arrived at between them.

8) The Court accordingly, by order dated 05.09.2007, pronounced the judgment and disposed of the suit in accordance with the consent terms. In terms of the compromise, the defendants (appellants) were to handover the vacant possession of the suit premises to the plaintiff (respondent) on or before 31.01.2009 and the defendants (appellants) were also liable to pay Rs.5000/per day by way of mesne profits if they fail to handover possession of the suit premises after 31.01.2009.

9) Since the defendants (appellants) failed to handover the vacant possession of the suit premises to the plaintiff (respondent) in terms of the compromise, the plaintiff (respondent) filed an execution application (No.31/2013) for execution of the consent decree dated 05.09.2007 and prayed therein for issuance of possession warrant in respect of the suit premises against the defendants (appellants).

10) The defendants (appellants) filed their reply and raised several objections on facts and law including maintainability of the execution application. By order dated 28.10.2015, the Executing Court overruled all the objections on merits and, in consequence, held that the execution application filed by the plaintiff (respondent) is maintainable in law and the consent decree is, therefore, executable against the defendants (appellants). The Executing Court, therefore, directed issuance of warrant of possession against the defendants (appellants) in relation to the suit premises.

11) The defendants (appellants) felt aggrieved and filed revision before the Small Causes Court at Mumbai. The Revisionary Court, by order dated 26.09.2016, allowed the revision, set aside the order dated 28.10.2015 passed by the Executing Court and remanded the case to the Executing Court for deciding the objection raised by the defendants(appellants) against the execution application afresh on merits. One of the reasons to remand the case to the Executing Court was that the Revisionary Court allowed the defendants (appellants) to file additional documents (Ex.22), which they had filed for the first time in the revision petition.

12) The plaintiff (respondent) felt aggrieved by the order of the Revisionary