Sangitrao S. Patil, J.

Rule, returnable forthwith. With the consent of the learned counsel for the contesting parties, heard finally.

2. The petitioner (original defendant No. 3 in Special Civil Suit No. 135 of 2002), has challenged the order dated 11.03.2010, passed by learned Civil Judge, Senior Division, Latur, in Special Darkhast No. 06 of 2005 and also judgment and order dated 24.06.2004 passed by 2nd Joint Civil Judge, Senior Division, Latur, in Special Civil Suit No. 135 of 2002.

3. The lands of the respondents were acquired for construction of a percolation tank at village Ramegaon. The petitioner obtained possession of the said land by private negotiations with the respondents on 23.02.1978. The respondents were assured that they would be paid rental compensation. The Government also passed Resolutions dated 01.12.1972, 17.11.1973, 02.08.1997 and 03.01.2004 and made a provision for payment of rental compensation to the land holders, whose lands were acquired by private negotiations. There is no provision in the Land Acquisition Act, 1894 ("the Act of 1894", for short) for payment of rental compensation. Since the respondents were not paid the rental compensation, they filed the above numbered Special Civil Suit for recovery of the rental compensation of Rs.7,34,916.00/- with interest at the rate of Rs.12% per annum.

4. The petitioner, though duly served with the suit summons, remained absent and therefore, the suit proceeded ex parte against the petitioner. The learned Civil Judge considered the facts of the case as well as the evidence on record, including the resolutions passed by the Government of Maharashtra, referred to above and decreed the suit against the petitioner on 24.06.2004 directing the petitioner to pay rental compensation of Rs.7,34,916/- to the respondents with interest at the rate of Rs.12% per annum from 29.04.1999 to 01.04.2000 and then at the rate of Rs.6% per annum from 01.04.2000 till realisation of the said amount. The respondents filed Special Darkhast No. 06 of 2005 for execution of the decree. The petitioner appeared before the Executing Court and filed reply challenging the judgment and decree dated 24.06.2004, on the following grounds:

(i) The ex parte judgment and decree passed against the petitioner is unjust, wrong and against the principles of natural justice and therefore, it cannot be executed.

(ii) The respondents miscalculated the amount of compensation and made excessive claim towards the rental compensation.

(iii) Though it is admitted that the compensation of the land taken by private negotiations on 23.02.1978, it was contended that the amount of Rs.31,914.92/- was paid to the respondents towards compensation and moreover, since the year 2006 the respondents were cultivating the land which were acquired and therefore, they were not entitled to claim any compensation. It seems that while making submissions before the learned Executing Court, it was contended that the Civil Court had no jurisdiction to decree the suit.

5. The learned Civil Judge, after hearing the parties, overruled the objections raised by the petitioner on the ground that the same could not be agitated before the Executing Court and that the petitioner should have challenged ex parte decree by filing an appeal.

6. The learned counsel for the petitioner submits that the impugned ex parte decree has been passed by the learned Civil Judge without jurisdiction. Therefore, it is a nullity. Consequently, it was not executable. He further submits that the rental compensation claimed by the respondents was in connection with their lands which were acquired under the Act of 1894. Since the said Act is a complete Code in itself, it was not open for the respondents to approach the Civil Court for claiming rental compensation. According to him, the suit for rental compensation was not at all maintainable before the Civil Court. In support of this contention, he relied on the cases of State of Bihar v. Dhirendra Kumar &