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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 ..... 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 needed remand to the Executing Court for its fresh decision on merits. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 23260-23261 OF 2017] - - - Dated:- 26-9-2018 - ABHAY MANOHAR SAPRE AND MOHAN M. SHANTANAGOUDAR, JJ. For the Petitioner : Mr. D. N. Goburdhan, AOR For the Respondent : Mr. Sahil Tagotra, AOR Judgment 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 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. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants) 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 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the 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 hereinbel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable 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. 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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