( 1 ) HEARD. Rule. By consent, the rule is made returnable forthwith.

( 2 ) FEW facts relevant for the decision are that the original plaintiff Maruti raghunath Kadam filed Suit No. 95/108 of 1993 in the Court of Small Causes under section 41 of the Presidency Small Cause Courts Act, 1882 in respect of the suit premises contending therein that the original defendant Mangatram anantrao Mane was his gratuitous licensee. On 17-1-2000 the said suit was decreed ex parte and direction for possession of the suit premises was issued in favour of the original plaintiff. Thereafter the original plaintiff filed miscellaneous Notice No. 148 of 2000 for execution of the said decree which was made absolute and the plaintiff was allowed to execute the decree. When the plaintiff tried to execute the decree on 21-1-2001, the petitioners obstructed the execution. In view thereof, the original plaintiff took out Obstructionist Notice no. 18 of 2001 under the provisions of Order 21, Rule 97 of the Civil Procedure code which was opposed by the petitioners. The learned judge of the Small causes Court dismissed the said obstructionist notice on 22-1-2003 holding that the decree passed in the suit was not binding on the petitioners since the decree was passed by the Court without jurisdiction in view of the decision of this Court in Ramesh Dwarkadas Mehra and others vs. Indravati Dwarkadas Mehra and others, reported in 2007 (4) Mh. L. J. 483 = 2001 (4) BCR 417. The original plaintiff preferred Appeal No. 308 of 2003 before the Division Bench of the small Causes Court. After hearing the arguments therein, the matter was reserved for judgment and the appeal was disposed of on 12-3-2004 while allowing the appeal and making the Obstructionist Notice No. 18 of 2001 absolute. It was held by the Division Bench of Small Causes Court that the judgment of the Division bench in the case of Ramesh Dwarkadas Mehra (supra) was delivered after the decree was passed in the suit and hence the decree had attained finality prior to the said decision in Ramesh Dwarkadas Mehras case and when the decision was passed by the Small Causes Court it had jurisdiction to entertain and try the suit between the licensor and the gratuitous licensee and it was not without jurisdiction. Aggrieved by the said order, the petitioners preferred the present writ petition. Meanwhile, the original plaintiff had expired on 2-3-2004 and his legal representatives are already on record having joined as the respondents.

( 3 ) THE contention of the petitioners is that this Court in the case of Ramesh dwarkadas Mehra had clearly declared the law that the suit by the licensor against the gratuitous licensee is not tenable before the Small Causes Court under section 41 of the Presidency Small Cause Courts Act and such a suit should be filed before the Civil Court i. e. the City Civil Court or the High Court, depending upon the valuation. Though the decision was delivered on 2-5-2001, much after the decree in question, it declares the law regarding the jurisdiction of the Court to entertain the suit between the licensor and the gratuitous licensee and therefore it would relate back to the date of enforcement of the law. It would mean that the said law was always in existence right from the inception and therefore the decree which was passed by the Small Causes Court in spite of the said law was without jurisdiction and therefore a nullity and the issue of nullity of a decree can be raised at any point of time and therefore the petitioners were entitled to obstruct the execution of the said decree which was a nullity. The lower appellate Court having totally ignored this aspect, erred in interfering with the order passed by the learned single judge of the Small Causes Court. In support of his contention, Shri G. S. Godbole, learned Advocate appearing for the petitioners, sought to rely upon the decisions in the matters of Kiran Singh and others vs. Chaman Paswan and others, reported in AIR 1954 SC 340

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