SARWAN KUMAR Vs. MADAN LAL AGGARWAL

JUDGEMENT

(1.) Leave granted.

(2.) The short point which falls for determination in this appeal is : whether a decree for ejectment passed by a Civil Court qua a commercial tenancy in the State of Delhi before the declaration of law by the Supreme Court in Gian Devi Anand vs. Jeevan Kumar, (1985) 1 Suppl. SCR 1, that such a tenancy is heritable, is executable or the judgment-debtors can successfully object to the execution of the decree on the ground that same was passed by a Court lacking inherent jurisdiction and therefore inexecutable Property No. 212/IX, Chawri Bazar, Delhi, was owned by Smt. Sarla Devi, wife of the respondent-landlord (hereinafter referred to as "the decree-holder"). She let out the suit premises in 1969 at a monthly rent of Rs.75/- for commercial purposes to late Shri Amar Nath, predecessor-in-interest, of the appellants (hereinafter referred to as "the judgment-debtors"). Smt. Sarla Devi died on 28th January, 1980. She had executed a Will dated 25th April, 1979 in favour of the decree-holder. The decree-holder obtained the letters of administration by filing a probate case No. 41 of 1980. By virtue of the probate given in his favour the decree-holder became the owner of the suit premises.

(3.) The decree-holder served a notice to quit under Section 106 of the Transfer of Property Act, 1882 on late Shri Amar Nath. Amar Nath in response to the notice to quit stated that he was not a tenant in his personal capacity and the tenant in the tenanted premises was a partnership firm M/s. Pelican Paper and Stationery Mart in which he was one of the partners. Amar Nath expired on 27th January, 1982. The decree-holder filed a suit for possession and mesne profits against the judgment-debtors in the Court of District Judge, Delhi stating therein that Amar Nath was the tenant of the suit premises in his individual capacity. It was alleged that the tenancy in favour of the judgment-debtors being the legal heirs of the original tenant was not heritable. Judgment-debtors were not served personally. Service on them was effected through publication in the newspaper in February, 1985. An ex parte decree of possession/recovery of mesne profits was passed against them. Civil Court recorded a finding that Amar Nath after the termination of tenancy became the statutory tenant and on his death the tenancy came to an end and accordingly a decree for possession of the suit premises along with the arrears of rent of damages was passed.