An order passed by the Civil Court is amenable to scrutiny by the High Court only in exercise of jurisdiction under Article 227 of the Constitution of India, and no letters patent appeal would be maintainable against such judgment.

JUDGMENT :

A.S. CHANDURKAR, J.

1. In this letters patent appeal filed under Clause 15 of the Letters Patent, the judgment of the learned Single Judge in Writ Petition No. 3710 of 2005 decided on 19-12-2008 has been challenged. By the said judgment, the writ petition has been dismissed consequently upholding the order passed by the learned Civil Judge (Junior Division), Morshi in execution proceedings on 3-10-1988 holding the decree in question to be in executable. C.A.Z. No. 6 of 2019 has been filed by the respondents seeking dismissal of the letters patent appeal on the ground that the same is not maintainable.

2. For considering the objection raised by the respondents to the maintainability of the letters patent appeal, it would be necessary to refer to certain relevant facts. The predecessors of the appellants had filed Regular Civil Suit No. 134 of 1967 against the predecessor of the respondents who was described as a licensee for his eviction along with a further prayer for restoration of possession of the suit property which consisted of a tiled room along with kitchen. During the pendency of the said suit the parties entered into a compromise by which it was undertaken by the defendant that in Diwali-1987 he would vacate the suit premises. On failure to vacate the same the plaintiffs were entitled to execute the said decree and recover possession. The compromise decree was accordingly passed in terms of the compromise. Since the defendant did not vacate the suit premises as per the compromise-deed the plaintiffs filed execution proceedings being Regular Darkhast No. 10 of 1988. In the said execution proceedings the judgment debtor raised an objection to the maintainability of the execution proceedings, reasons for which are not required to be gone into. In short, it was the case of the judgment debtor that the decree passed on compromise was not executable and hence the execution proceedings were liable to be dismissed. On 3-10-1988 the learned Judge of the Executing Court upheld that objection and dismissed the execution proceedings by holding the same to be not maintainable in view of the fact that the decree was not executable. The decree holders challenged that order before the Appellate Court but that appeal was dismissed as not maintainable.

3. The decree holders then filed Writ Petition No. 3710 of 2005 under Articles 226 and 227 of the Constitution of India challenging the order passed by the Executing Court. Prayer (1) in the said writ petition reads as under:

“1. Quash order dated 20-2-1995 passed by the District Judge, Amravati in Regular Civil Appeal No. 318/88 arising out of order dated 3-10-1988 passed by the Civil Judge, Junior Division Morshi in Regular Execution Case 10/1988.”

The learned Single Judge by his judgment dated 19-12-2008 upheld the order passed by the Executing Court and consequently dismissed the said writ petition. The aforesaid judgment of the learned Single Judge has been challenged in this letters patent appeal. The appeal was admitted on 28-1-2010. It is thereafter that the respondents filed C.A.Z. No. 6 of 2019 seeking dismissal of the letters patent appeal on the ground that it was not maintainable.

4. Shri J.T. Gilda, learned Senior Advocate for the respondents submitted that what was impugned in the writ petition was an order passed by the Civil Court in execution proceedings. The jurisdiction exercised by the learned Single Judge while entertaining and thereafter dismissing the writ petition was under Article 227 of the Constitution of India especially in view of the fact that the order impugned in that writ petition was one passed by the Civil Court. It was his submission that as exception to the order passed by the Civil Court was taken in the writ petition the jurisdiction exercised while entertaining the same was under Article 227 of the Constitution of India and hence the intra-Court appeal challenging that adjudication was not maintainable. Placing reliance on the decision in Joge