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(a) Brahmdeo Chaudhary v/s Rishikesh Prasad Jaiswal and Another reported in (1997) 3 Supreme Court Cases 694; and

905.wp.6733.17.doc

(b) Bhanwar Lal v/s Satyanarain and Another reported in (1995) 1 Supreme Court Cases 6.

15 Without prejudice to the aforesaid argument, Mr. Damle submitted that in any event, the Consent Decree dated 5 th September, 2007 that was entered into between the Plaintiff and the Defendants was unexecutable. He submitted that a Consent Decree entered into between a Plaintiff and a Defendant in Rent Act proceedings stands on a different footing than from a compromise decree that would be entered into in a normal suit. He submitted that the Maharashtra Rent Control Act, 1999 is a beneficial legislation to protect the bonafide and genuine tenant and under the Act, a decree for possession can be passed against a tenant only if the landlord makes out a ground as stipulated under section 16 of the Act. This being the case, even in a case where a Consent Decree is passed for eviction, the court has to be satisfied that a ground as stipulated under section 16 is made out. If this satisfaction is not recorded by the court, then the Consent Decree is unexecutable, was the submission. In support of this proposition, Mr. Damle relied upon following decisions:-

17 In rejoinder, Mr. Naik submitted that the argument of Mr. Damle that the decree is unexecutable because no ground is made out under Section 16(1), is factually incorrect. He submitted that in the facts of the present case, the Defendants had submitted to a decree on admission, as is clearly recorded in the compromise decree. This clearly means that the Defendants admitted all that was stated in the Plaint. In the Plaint, it was

905.wp.6733.17.doc specifically averred that the Defendants were guilty of change of user which was a ground for eviction under Section 16(1)(n) of the Maharashtra Rent Control Act, 1999, and therefore, it was not correct on the part of Mr. Damle to contend that no ground as set out under Section 16(1) was made out for the Small Causes Court to pass a decree of eviction. He submitted that once the Defendants submit to a decree on admission, they automatically admit that they have expressly agreed to suffer a decree of eviction because the landlord is entitled to have such a decree under the law. In this regard, Mr. Naik placed reliance upon a decision of the Supreme Court in the case of Roshan Lal and Another v/s Madan Lal and Others reported in AIR 1975 SC 2130. 18 I have heard the learned counsel for the parties at length and have perused the papers and proceedings in the Writ Petition. I have also carefully gone through the order dated 28 th October, 2015 passed by the Executing Court as well as the impugned order dated 26th September, 2016 passed by the Revisional Authority. I shall first examine the argument of Mr. Damle whether Order 21 Rule 97 takes within its sweep also the judgment-debtor or the same applies only to a third party, namely,

(emphasis supplied) 36 I find that the facts of the present case also would squarely be covered by the ratio laid down by the Supreme Court in the case of Roshan Lal and Another (supra) . I, therefore, have no hesitation in rejecting the argument made by Mr. Damle

905.wp.6733.17.doc that the decree was unexecutable because the same did not reflect any ground for eviction as set out in Section 16(1) of the Maharashtra Rent Control Act, 1999.

37 Thereafter, it was feebly sought to be contended by Mr. Damle that this decree is unexecutable because the real transaction between the parties was a loan transaction and the decree was never meant to be acted upon. Mr. Damle submitted that this being the case, the remand order of the Revisional Authority be modified and the Executing Court be asked to examine this issue after letting the Defendants produce the documents in this regard and which was allowed by the Revisional Authority. I am afraid I am unable to accept this submission. It is now well settled that the Executing Court cannot go behind the decree unless it is shown that the Court passing the decree inherently lacked jurisdiction to do so. Only if it is shown that a decree is a nullity, can the Executing Court refuse to execute the decree. Even if the decree is held to be illegal, unless it is set aside by a Superior Court, it cannot be denuded of its efficacy by any collateral attack or in incidental proceedings. In this regard, reliance placed by Mr. Naik on a decision of the Supreme Court in