GANESH PRASAD AGARWAL Vs. CHANDRA DEV CHOUHAN

JUDGEMENT

(1.) IN this petition under Article 227 of the Constitution of India, the petitioners have called in question the legality, validity and propriety of the order dated 23-2-2008 passed by the Executing Court (the Additional District Judge, Bilaspur) in Execution Case No. 24-A/ 2005 (Annexure P-7). By the said order, the learned Executing Court has allowed the respondent /judgment - debtor's application under Section 47 read with Section 151 of the Code of Civil Procedure, 1908 (henceforth 'the Code, 1908').

(2.) THE indisputable facts in the present case are that the petitioners / plaintiffs / decree- holders had preferred a suit for recovery of possession and for arrears of rent with respect to the suit premises. The said suit for eviction and arrears of rent was allowed by the Additional District Judge, Bilaspur on 23-11-2005 in Civil Suit No. 24-A/2005 (Annexure P -1) and a decree directing the respondent / defendant to hand over vacant possession of the premises to the petitioners / plaintiffs and to pay arrears of rent by the defendant to the plaintiffs from May, 1996 till the date of recovery at the rate of Rs. 3,500.00 per month, after adjusting the rent already deposited by the defendant before the rent controlling authority.

(3.) LEARNED Counsel for the petitioners submits that the Executing Court has committed a serious error by directing that the decree-holders have to pay Court - fees on the amount of arrears of rent under Section 11 of the Court-fees Act, 1870 (henceforth 'the Act, 1870'). According to him, Section 11 of the Act, 1870 is applicable wherein the suit is for mesne profits or account when the amount decreed exceeds the amount claimed. According to him, the Executing Court ought not to have allowed the judgment - debtor's application under Section 47 read with Section 151 of the Code, 1908 and by allowing the said application, the Court below has committed a serious error of jurisdiction, which requires to be corrected by this Court in exercise of its supervisory jurisdiction. Per contra, learned counsel for the respondent /judgment - debtor has supported the impugned order by referring to the provisions contained in Sections 6 and 11 of the Act, 1870. According to him, application for execution of decree for eviction and arrears of rent would be a document requiring affixation of Court - fees under Section 6 of the Act, 1870 apart from the fact that under Section 11 of the Act, 1870, it will be treated as mesne profits and the amount of Court - fees is leviable before the execution and as such the Executing Court has not committed any error by directing the petitioners to deposit the Court - fees.