REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 10010­10011 OF 2018 [Arising out of SLP (C) Nos.23260­23261 of 2017]

Hiya Associates & Ors.              .. Appellant(s)

Versus

Nakshatra Properties Pvt. Ltd.          .. Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) These appeals arise from the final judgment and

order dated 21.07.2017 & 26.07.2017 passed by the

High Court of Judicature at Bombay in Writ Petition

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No.6733 of 2017 whereby the High Court allowed the

writ petition filed by the respondent herein, set aside

the order dated 26.09.2016 passed by the Small

Causes Court, Appellate Bench, Mumbai in R.A.

No.333/2015 and restored the order dated 28.10.2015

of the Executing Court in Execution Application

No.31/2013 in R.A.E. Suit No.872/2007.  

3) The issue involved in these appeals is short. Few

facts, however, need mention to appreciate the issue,

which is the subject matter of these appeals.

4) The appellants are the defendants and the

respondent is the plaintiff in the civil suit out of which

these appeals arise.

5) The issue arises out of eviction suit, which

resulted in passing of a compromise decree followed by

its execution. So far as the present appeals are

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concerned,  they arise out of  an order passed  in the

execution proceedings.   

6) The Respondent(plaintiff) filed a suit

(No.872/2007) in the Court of Small Causes at

Mumbai against the  appellants(defendants) for their

eviction from the suit premises. The eviction was

claimed inter alia on the ground of unauthorized user

of the suit premises by the appellants (defendants)

which, according to the respondent (plaintiff),

amounted to the change of user under the provision of

Section 16(1)(n) of the Maharashtra Rent Control Act,

1999 (hereinafter referred to as “the Act”).   It  is not

necessary to set out the facts in the pleadings of the

parties.

7) During the pendency of the suit, the parties, i.e.,

the appellants and respondent, compromised the

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matter  and accordingly filed their consent terms on

which the compromise was arrived at between them.  

8) The Court accordingly, by order dated

05.09.2007, pronounced the judgment and disposed of

the suit in accordance with the consent terms. In

terms of the compromise, the defendants (appellants)

were to  handover the vacant  possession  of the  suit

premises to the plaintiff (respondent) on or before

31.01.2009 and the defendants (appellants) were also

liable to pay Rs.5000/­ per day by  way of  mesne

profits  if  they fail to handover possession of the suit

premises after 31.01.2009.

9) Since the defendants (appellants) failed to

handover the vacant possession of the suit premises to

the plaintiff (respondent) in terms of the compromise,

the plaintiff (respondent) filed an execution application

(No.31/2013) for execution of the consent decree dated

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05.09.2007 and prayed therein for issuance of

possession  warrant in respect of the suit premises

against the defendants (appellants).  

10) The defendants (appellants) filed their reply and

raised several  objections on  facts  and  law  including

maintainability of the execution application. By order

dated 28.10.2015,  the Executing Court  overruled all

the objections on  merits and, in consequence,  held

that the execution application filed by the plaintiff

(respondent) is  maintainable  in  law and the consent

decree is, therefore, executable against the defendants

(appellants). The Executing Court, therefore, directed

issuance of warrant of possession against the

defendants (appellants) in relation to the suit

premises.  

11) The defendants (appellants) felt aggrieved and

filed revision before the Small Causes Court at

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Mumbai. The Revisionary Court, by order dated

26.09.2016, allowed the revision, set aside the order

dated 28.10.2015 passed by the Executing Court and

remanded the case to the Executing Court for deciding

the objection raised by the defendants(appellants)

against the execution application afresh on  merits.

One of the reasons to remand the case to the

Executing Court was that the Revisionary Court

allowed  the defendants  (appellants) to file  additional

documents (Ex.22), which they had filed for the first

time in the revision petition.  

12) The plaintiff (respondent) felt aggrieved by the

order of the Revisionary Court and filed writ petition

under Article 227 of the Constitution of India in the

High Court of Bombay. By impugned order, the High

Court allowed the writ petition, set aside the order of

the  Revisionary Court  and restored the  order  of the

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Executing Court, which gives rise to filing of the

present appeals by way of special leave by the

defendants (appellants) in this Court.

13) Heard Mr. D.N. Goburdhan, learned counsel for

the appellants and Mr. Gourab Banerji, learned senior

counsel for the respondent.

14) Having heard the learned counsel for the parties

and on perusal of the record of the case, we are

inclined to allow the appeals in part and while setting

aside the impugned order as also the order passed by

the Revisionary Court remand the case to the

Revisionary Court for deciding the defendants’

(appellants) revision  afresh  on  merits in  accordance

with law.

15) The reasons to remand the case to the

Revisionary  Court  are  more than one  as  mentioned

hereinbelow.

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16) In our opinion, the Revisionary Court committed

two errors. In the first place, it should not have

remanded the case to the Executing Court for its fresh

consideration on merits but it should have decided the

revision on merits in accordance with law.

17) It is for the reason that the Executing Court had

already decided all objections raised by the defendants

(appellants) on merits and had found no merit therein.

The Revisionary Court was, therefore, under legal

obligation to decide the legality and correctness of the

findings recorded by the Executing Court on its merits

in its revisionary jurisdiction instead of remanding the

case to the Executing Court.   Indeed, we do not find

any justifiable reason, which could justify remand

having regard to the nature of the objections raised by

the defendants (appellants) before the Executing

Court.  In other words, this was not the case, which

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needed remand  to the  Executing  Court for its fresh

decision on merits.  

18) In our opinion, the remand of a case to the

Subordinate Court is considered necessary when the

Superior Court while exercising its appellate or

revisionary jurisdiction finds that the Subordinate

Court has failed to decide some material issues arising

in the case or there is some procedural lacuna noticed

in the trial, which has adversely affected the rights of

the parties while prosecuting the suit/proceedings or

when some additional evidence is considered

necessary to decide the rights of the parties which was

not before the Trial Court etc. (See Order 41 Rules 23,

23­A, 24 and 25 of the Code of Civil Procedure, 1908).

Such was not the case here.

19) Second error committed by the Revisionary Court

was that it allowed the defendants (revision

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petitioners) to file additional documents (Ex.22) to

prove their case.  

20) In our opinion, the documents sought to be filed

by the   defendants (revision petitioners)   were neither

relevant and nor material for deciding the legality and

correctness of the order passed by the Executing

Court. The legality and correctness of the order

impugned in the revision could be decided one way or

the other without the aid of any additional document

but on the basis of material already on record keeping

in view  the law  laid  down by this  Court in several

decided cases on the issue in question.  Indeed, if the

Executing Court could decide the issue finally at  its

level, the Revisionary Court too could do the same at

its level.

21) In our view, the issue in question was not

required to be decided under Order 21 Rule 97 of the

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Code of  Civil  Procedure  but it  should  have  been so

decided keeping in view the law laid down  by this

Court in the case of  Roshanlal  vs.  Madan Lal  (AIR

1975 SC 2130) which  lays down the principle as to

how the issue of such a nature needs to be dealt with

by the Executing Court when it is raised by the

judgment debtor in execution proceedings.

22) It is due to these two aforementioned reasons, we

are of the considered view that the order passed by the

Revisionary Court is not legally sustainable.

23)   So far as the impugned order passed by the High

Court is concerned, in our view, the High Court having

noticed the aforementioned errors in the order of the

Revisionary Court should have remanded the case to

the Revisionary Court for deciding the revision afresh

on merits  in accordance with law. Instead, the High

Court itself went into the question on  merits and

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upheld the order of the Executing Court.  This, in our

opinion, the High Court should not have done and left

it for the Revisionary Court to do.  

24) By these observations, we do not mean that the

High Court had no jurisdiction to decide the issue but

having regard to the nature of objections, remedy

available to the parties to have finding on the question

arising in the case one  way or the other from the

Revisionary Court  and  to  put the record straight, it

was not called for in this case.   

25) It is for these reasons, we consider it proper to

set aside the impugned order and also the order of the

Revisionary Court and remand the case to the

Revisionary Court to decide the defendants’

(appellants’) revision afresh on merits in  accordance

with law.

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26) The Revisionary Court would decide the legality

and correctness of the order passed by the Executing

Court dated 28.10.2015 on merits keeping in view the

law laid down by this Court in Roshanlal (supra) and

other cases on the subject.

27) While deciding the revision, the Revisionary

Court  would  not be influenced by the observations

contained  in  impugned order and also of this Court

order because we have not  applied our mind to the

merits of the case having formed an opinion to remand

the case to the Revisionary Court.

28) The  appeals thus succeed  and  are accordingly

allowed in part.  Impugned order and the order of the

Revisionary Court are set aside and the case is

remanded to the Revisionary Court to decide the

defendants’ (appellants’) revision (No.333/2015) afresh

on its merits in accordance with law.   

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29) Since the  matter is an old one,  we  direct the

Revisionary  Court to decide the revision  within six

months as an outer limit.  

…………...................................J.   [ABHAY MANOHAR SAPRE]

                                    ..…...……..................................J.

   [MOHAN M. SHANTANAGOUDAR]

New Delhi; September 26, 2018  

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