JUDGMENT - A.M. KHANWILKAR, J.:---Heard both sides.

The issue that arises for consideration in the present writ petition is that whether the Court below was justified in dismissing the application taken out by the petitioner whereby the petitioner wanted to raise an issue that the decree passed by the Court was a nullity. The Court below by the impugned order rejected the petitioner's said plea by relying on the decision of the Apex Court in (A.I.R. 1970 S.C. 1475)1.

2. Mr. Sali, appearing for the petitioner, strenuously contended that though the petitioner had not raised the issue of jurisdiction of the Civil Court in the context of provisions of the Bombay Public Trust Act in the appeal that was filed against the decree, however, it was still open to the petitioner to raise the said question when the said decree was sought to be executed against the petitioner. According to him, if the decree passed by the Civil Court is nullity on any count that issue could be raised even at the time of execution even though the same was not raised in the appeal that was filed against the said decree. In support of this submission he relies on decisions reported in the cases of (Kiran Singh and others v. Chaman Paswan and others)2, A.I.R. 1954 S.C. 340 and (Ajudh Raj and others v. Moti s/o Mussadi)3, A.I.R. 1991 S.C. 1600.

3. On the other hand Mr. Shah contends that the petitioner having failed to raise the question of jurisdiction, which is now pressed into service, in the appeal that was filed against the decree and allowed the decree to attain finality, it is not open for the petitioner to agitate the said ground at the stage of execution of the said decree. In support of this contention Mr. Shah places reliance on the decision of the decision of the Apex Court reported in the case of (P.K. Vijayan v. Kamalakshi Amma and others)4, A.I.R. 1994 S.C. 2145 as well as decision of this Court reported in the case of (Vidarbha Kshatriya Mali Shikshan Sanstha v. Mahatma Fuley Shikshan Samiti, Amravati)5, 1986 Mh.L.J. 773 and in the case of (Leelavati w/o Vasantrao Pingle and others v. Dattatraya Dhondiraji Kavishar others)6, 1988(2) Bom.C.R. 429.

4. In my view, the conclusion reached by the courts below cannot be doubted. If the petitioner was serious about challenging the decree passed by the Civil Court being without jurisdiction he ought to have raised that plea in appeal that was filed before this Court against the said decree. Petitioner having failed to raise the relevant ground at that stage, cannot, now, be permitted to raise that challenge at the execution stage. Both decisions relied upon by Mr. Sali can be distinguished in the facts of the present case. On the other hand the decision relied upon by Mr. Shah reported in P.K. Vijayan's case (supra) directly deals with this aspect of the matter. According to the ratio of the said decision of the Apex Court if a party fails to raise the challenge with regard to the validity of the decree in the appeal that was filed against the said decree then the same cannot be permitted to be raised in the execution proceedings. In para 13 of the said decision the Apex Court took the view that it would be sheer abuse of process of the Court to permit the party to raise at each successive stage different pleas to protract the proceedings or to drive the party to multiplicity of proceedings. Thus the party would be precluded from raising plea of nullity at the stage of execution of the decree. In the said decision the Apex Court has observed that if the party fails to raise the ground which was otherwise available, in that case it would be deemed that the party has waived the said challenge. In the circumstances, I find no reason to interfere in this writ petition. Hence dismissed with costs. C.C. expedited.

Writ petition dismissed.

-----

Click Here to Read the rest of this document