High Court of Judicature at Bombay Hears Writ Petition Challenging Concurrent Orders Making Obstructionist Notice Absolute in Execution of Rent Eviction Decree. Unregistered Conveyance Fails to Confer Title and Subsequent Tenancy Agreement Does Not Create Independent Right to Resist Decree Under Order XXI Rules 97-101 of Code of Civil Procedure, 1908.

Writ petition under the civil appellate jurisdiction of the Bombay High Court challenging concurrent findings of the Executing Court and Appellate Bench of the Court of Small Causes in obstructionist proceedings arising from execution of an eviction decree.

Petitioners-obstructionists sought to quash and set aside the judgment and order dated 31 January 2023 passed by the Appellate Bench of the Court of Small Causes at Mumbai in Ex. Appeal No.222 of 2021, which dismissed their appeal against the Executing Court's order dated 30 September 2021 making Obstructionist Notice No.474 of 2010 absolute and directing removal of obstruction.

Petitioners challenged the concurrent finding that they had no independent right, title and interest in the demised premises and that the eviction decree passed in RAE&R Suit No.126/328/1989 bound them.

Executing Court by judgment and order dated 30 September 2021 made Obstructionist Notice No.474 of 2010 absolute and directed removal of obstruction. Appellate Bench of Court of Small Causes by judgment and order dated 31 January 2023 in Ex. Appeal No.222 of 2021 dismissed the petitioners' appeal and concurred that the obstructionists failed to establish independent right and the decree bound them.

Whether obstructionist Nos.5 and 6 had independent right, title and interest in the demised premises based on a registered tenancy agreement dated 9 November 2006 executed by Kurban Husein M. Pardawala. Whether the executing court was required under Order XXI Rule 101 CPC to adjudicate all questions including title, rather than non-suiting the obstructionists merely because the conveyance was unregistered. Whether an unregistered conveyance dated 9 July 2002 could confer title on Kurban Husein M. Pardawala so as to enable him to create a valid tenancy.

Petitioners argued that their possession of the demised premises was admitted and referable to a lawful registered tenancy agreement dated 9 November 2006, and therefore the courts below erred in holding they had no independent right. Petitioners contended that the execution of the Deed of Conveyance by Burjor Sarkari as constituted attorney was not in dispute, the evidence of obstructionist No.5 went untraversed, and the Registrar's refusal to register due to non-appearance of the executant did not dilute the underlying sale transaction. Petitioners submitted that the executing court was obligated to adjudicate all questions including title under Order XXI Rule 97 read with Rule 101 CPC, and the courts misdirected themselves by not deciding the title issue. Respondents argued that Kurban Husein M. Pardawala's attempt to join another suit was rejected in 2007, so the obstructionists claiming through him could not have a better right. Respondents submitted that no legal and valid title vested in Kurban Husein M. Pardawala because the conveyance was unregistered, he could not convey a better title to obstructionist No.6, and the tenancy claim was untenable, making the obstructionist notice correctly absolute.

Rule. Rule made returnable forthwith and, with the consent of the learned Counsel for the parties, heard finally. The petitioners – obstructionists take exception to a judgment and order dated 31st January, 2023 passed by the Appellate Bench of the Court of Small Causes at Mumbai in Ex. Appeal No.222 of 2021, whereby the appeal preferred by the petitioners against a judgment and order dated 30th September, 2021 passed by the trial court came to be dismissed. Obstructionist No.6 was stated to be a tenant in respect of the demised premises, who was put in possession thereof pursuant to a registered tenancy agreement dated 9th November, 2006 executed by Kurban Husein M. Pardawala, the landlord of the demised premises. Under the scheme of the Civil Procedure Code, 1908 (“the Code”) as subsumed under Order XXI Rule 97 to Rule 104 under the heading, “Resistance to delivery of possession to decree-holder or purchaser”, a complete machinery is laid down to resolve all disputes in relation to the execution of the decree for possession, in cases where resistance is offered to the execution of a decree for possession.

RAE&R Suit No.126/328/1989 filed by respondent nos.1 and 2 for recovery of possession of demised premises; ex parte decree passed on 3 September 1992. First obstruction by Harish Kumar Panjwani; plaintiffs took out Obstructionist Notice No.17 of 2001, made absolute on 15 March 2003. Plaintiffs filed Execution Application No.158 of 2010; possession warrant issued on 26 April 2010. On 3 May 2010, second set of obstructionists (petitioners/obstructionist Nos.5 and 6) caused obstruction; obstructionist Nos.1 to 4 claimed possession through them. Plaintiffs took out Obstructionist Notice No.474 of 2010; later obstructionist Nos.1 to 4 disposed as withdrawn. Obstructionist Nos.5 and 6 filed written statement; obstructionist No.5 examined himself as DW1; plaintiffs did not cross-examine. Executing Court by judgment and order dated 30 September 2021 made Obstructionist Notice No.474 of 2010 absolute and directed removal of obstruction. Petitioners filed Ex. Appeal No.222 of 2021 before Appellate Bench; Appellate Bench dismissed appeal by judgment and order dated 31 January 2023. Petitioners filed Writ Petition No.2451 of 2023 before Bombay High Court.

• Code of Civil Procedure, 1908: Order XXI Rules 97, 99, 100, 101, 104