A Judgment Debtor may raise jurisdictional objections against a decree in execution proceedings only if such objections are apparent on the record, not requiring examination of facts. An erroneous exercise of jurisdiction does not equate to a lack of jurisdiction.

JUDGMENT :

R.M. JOSHI, J.

1. Rule. Rule made returnable forthwith.

2. By consent of parties, heard finally at admission stage.

3. Petitioner is original Defendant in Regular Civil Suit No. 157/2013 and Judgment Debtor in Regular Darkhast No. 2/2020. Being aggrieved by order passed below Exhibit 1 in the said Darkhast on 06.09.2022, holding that the Execution Court has jurisdiction to entertain the execution application, Petitioner has preferred this petition.

4. In order to appreciate the contentions sought to be raised before this Court, it would be relevant to consider the backdrop in which the impugned order came to be passed.

5. Respondent Syed Taheroddin filed suit bearing Regular Civil Suit No. 157/2013 against Syed Shafiyoddin and Syed Naimoddin along with State of Maharashtra and other state authorities for seeking declaration in respect of the suit property being 2 R land from Gat No. 100 situated at Saigaon,Tq. Ambajogai Dist. Beed and further injunction against Defendant Nos. 4 and 5. It is the case of the Plaintiff that the suit property is purchased by him under registered sale-deed No. 4228/2011 and on the basis of this, he became owner of the suit property. There is further averment with regard to the obstruction caused by Defendant Nos. 4 and 5 into his possession of the suit property and hence, injunction is also sought against them.

6. Defendant Nos. 4 and 5 resisted the suit by filing written statement vide Exhibit 28. It is denied by these Defendants that the Plaintiff has purchased the suit property under registered sale-deed and got his name mutated in the revenue record. Allegations in respect of alleged obstruction are also denied and it is contended that there is no cause of action for filing suit. Additional written statement was also filed by these Defendants contending that Defendant No. 4 has purchased the property bearing Block No. 46 under registered sale-deed dated 30.10.1986 from the brother of the Plaintiff and that he is in possession of the said property. Defendant Nos. 1 to 3 though caused appearance did not resist the suit by filing written statement. The suit was heard on merit, parties were given opportunity of leading evidence and hearing and, by judgment and decree dated 24.07.2015, suit came to be decreed. It is declared that the Plaintiff is lawful owner of the suit property and injunction was clamped against Defendant Nos. 4 and 5 directing them to remove construction raised by them over the suit property and deliver vacant possession of the suit property to the Plaintiff within two months from the date of the order.

7. This judgment and decree came to be challenged in Regular Civil Appeal No. 257/2015 unsuccessfully as the said appeal came to be dismissed on 25.08.2016. Second appeal filed before this Court was also dismissed. So also the judgment and decree has attained finality. This decree was put for execution in Regular Darkhast No. 2/2016.

8. Petitioner Syed Shafiyoddin (original Defendant No. 4) resisted execution on the ground that the Trial Court has inadvertently failed to frame issue as to whether the Court has jurisdiction to try and entertain the suit. It is alleged that the Trial Court has passed the judgment exceeding its jurisdiction. In this regard, reference is made to paragraph No. 4 of the plaint. On this count, it is claimed that the execution proceeding deserves to be dismissed. It was also averred in the said application that Petitioner/Judgment Debtor has filed Regular Civil Suit No. 79/2018 against Plaintiff/Decree Holder as well as original owner of the suit property. With these averments, dism