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TMI Blog2018 (9) TMI 2100X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 concerned, they arise out of an order passed in the execution proceedings. 6) The Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecree dated 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 defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erits 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 noted 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. 29) Since the matter is an old one, we direct the Revisionary Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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