JUDGMENT - S.M. DAUD, J.:---The short question for determination before me is whether an error on the point of jurisdiction of a Court, which has on an appraisal of the subject before it come to a correct finding, should be reversed by the High Court while exercising its powers under Article 227 of the Constitution ? 2. The petitioner-plaintiff filed a suit for recovery of unpaid rent and ejectment against the respondent-defendant. That was Regular Civil Suit No. 100 of 1974 in the Court of the Civil Judge, (Junior Division) at Niphad. In pursuance of a compromise between the parties, the trial Court passed a decree on 13-7-79. Shortly stated, the decree was to the effect that the unpaid rent plus damages and costs etc. all ascertained upto July 1979 was to be paid on or before August 30, 1979. On such deposit being made, the defendant was to continue as a tenant in the suit premises on a rental of Rs. 37.50 ps. per month. If the rent was not paid by the stipulated date, plaintiff was to be entitled to eject the defendant. Defendant did not pay and plaintiff levied execution. In execution, the defendant now the judgment-debtor, sought for time to vacate as also pay the money part of the decree. Time to vacate was sought on the ground that a house of his brother was under constructions, that for one reason or other the construction was not completed and that as soon as the house was ready, defendant would vacate. Time was granted and the case was fixed for 20-10-80. On that day upon a similar application made by the defendant for time, the Executing Court passed on order reading thus :--- "Amount be accepted. Darkhast to proceed for possession." Against this order, the judgment-debtor went in appeal to the District Court. The said appeal came up for hearing before the Assistant Judge at Nasik. The Assistant Judge negatived the decree-holder's plea that the appeal did not lie and further held that the terms of the compromises created a tenancy. As such the decree-holder's remedy was to file a fresh suit for ejectment preceded by a quit-notice and not trying to attain the same by seeking to execute the decree passed in the suit afore-mentioned. It is that order of the Assistant Judge which is impugned in the instant writ petition. As such the decree-holder's remedy was to file a fresh suit for ejectment preceded by a quit-notice and not trying to attain the same by seeking to execute the decree passed in the suit afore-mentioned. It is that order of the Assistant Judge which is impugned in the instant writ petition. Having regard to the submissions made before me, I allow the petition for the reasons given below. REASONS 3. The District Court held that the order of the Executing Court was appealable. In so finding, it relied upon the decision of Tulpule, J., in the case reported at (Ibrahim Khan v. Kasipura)1, 1979 Mh. Law Journal Note 1. That no longer represents the correct law. The decision of Tulpule, J., has been over-ruled by a Division Bench consisting of Dharmadhikari and Agarwal, JJ., (see 1983 Mh. Law Journal Page 467). Briefly stated, the Division Bench held that an appeal to challenge orders passed in execution, such orders having been passed after the coming into force of the Code of Civil Procedure (Amendment) Act (104 of 1976) is not tenable. In the instant case, execution was levied on 10-7-80 and the District Court had before it an order passed on 20-10-80. Therefore, the appeal to the District Court was not tenable. 4. However, can I for this reason upset the Assistant Judge's finding which seems in law to be correct ? A plain reading of the terms of the compromise on which decree is based, indicate that a fresh contract of tenancy had been negotiated between the parties. It is true that the defendant did not pay the money part of the decree within the stipulated time, and, also that the date fixed for payment was described as the essence of the contract. But this does not mean that a mere concession was granted to the defendant. A new contract of tenancy had come into existence, and, that wiped out the contract which came to end upon the institution of the suit by the plaintiff. The Assistant Judge was, therefore, right in holding that plaintiff's remedy was not by way of execution. But to sustain the Assistant Judge would be put the decree-holder in jeopardy. At the stage of execution, the judgment-debtor did not raise the plea which found favour with the Assistant Judge. The Assistant Judge was, therefore, right in holding that plaintiff's remedy was not by way of execution. But to sustain the Assistant Judge would be put the decree-holder in jeopardy. At the stage of execution, the judgment-debtor did not raise the plea which found favour with the Assistant Judge. All along he was praying for time to vacate and giving assurances of willingness to vacate as and when he could do so. Time was granted to him, possibly with the consent of the decree-holder. In this background it was unfair of the judgment-debtor to suddenly turn round and plead a fresh contract of tenancy as a defence to the execution in the Appellate Court. Mr. Kankaria contends that but for the erroneous view of Tulpule, J., his client would have come straight to the High Court by way of a revision or writ petition. Counsel wants me to accord leave to the respondents to file a revision or writ petition after the present writ petition is allowed, so that he can take proper steps to impugn the order of the Executing Court. Nothing stops the respondent from filing a revision or writ petition, if he is so advised. It is not for me to rule upon the entitlement or otherwise of the respondent to pursue that remedy. That will be for the Court which will hear the matter as and when it is instituted. Having regard to all circumstances I think it proper to leave the parties to bear their own costs. Hence the order. ORDER Rule made absolute. Darkhast be re-commenced from the stage at which it was last left in the Executing Court. Costs in this Court as incurred. Warrant for possession shall not issue until six weeks as from today. Rule made absolute. -----