ONKAR NATH Vs. GAJA NAND

JUDGEMENT

(1.) This order will also dispose of C.M.(M) No. 21 oF 1983. Both these petitions have been filed against the order dated 2-7-1982 passed by the executing court whereby the application of the petitioner under Order 21 Rule 32 of the Code of Civil Procedure was allowed to the extent that attachment warrants for attaching the property of the Judgment debtor were issued for compelling them to comply with the orders of the Court dated 28-5-1983. In civil revision by the decree-holder the grievance is that besides the attachment warrants for attaching the property the executing court should have also issued order for detaining the judgment debtor in civil prison and should further have issued the warrants for recovery of possession of the room illegally occupied by the respondent-judgment debtor. As against that the petition filed by the judgment debtor is against' the order regarding the attachment warrants of the property.

(2.) The facts, which give rise to both these petitions, are that Munna Lal father of respondent No. I was a night watchman of premises No. 1194 Maliwar, Delhi and in that capacity was allowed to use a kothri on second floor shown in red in the plan attach to the plaint. In 1962 the said Munna Lal died and on humanitarian grounds his wife Pushpa Devi was allowed to stay in the said Kothri. In 1964 Gaja Nand son of the said Pushpa Devi and Munna Lal along with his wife came from the village and started staying with their mother. On 15-5-1969, the petitioner served a notice on Pushpa Devi terminating her licence. Pushpa Devi died on 19-7-1969. The petitioner thereafter on 4-8-1969 filed suit for possession of the said Kothri against respondents I and 2. Along with the prayer for possession, a prayer was made for injunction restraining respondents I and 2 from taking possession of any other portion of the property. The petitioner also claimed mesne profits for use and occupation at the rate of Rs, 15.00 per month. The said suit was decreed on 28-5-1973. All the three prayers were granted. Respondents I and 2 filed an appeal before the Additional District Judge, Delhi which was dismissed on 21-3-74 and the second appeal was dismissed by this Court on 22-7-1974. On 29-3-1974 the petitioner-decree-holder made an appli- cation for execution of the decree for possession. Respondents I and 2 filed objections. It was stated in the objection petition that the decree passed against them was without jurisdiction as Munna Lal was a tenant in the property and therefore civil court had no jurisdiction to entertain the suit. The objections were dismissed on 8-4-1975. By order dated 1-8-1975 the court granted police aid for delivering possession as the judgment debtor had refused to deliver possession and there was an apprehension of breach of peace. On 7-10-1975 respondent No. I filed a suit that he was a tenant of two rooms at Rs. 25.00 per month. He further stated that the petitioner wanted to increase the rent and wanted to take possession and prayed for the grant of injunction restraining the petitioner from dispossessing him. In December 1975, it is alleged that respondents I and - forcibly occupied one other room on second floor marked 'A' in the plan.

(3.) The petitioner filed an application under Order 21 Rule 32 Civil Procedure Code . on 4-2-1976 for attachment of the property of respondents I and 2 and their detention in civil prison on the ground that respondents I and 2 in violation of injunction order had occupied another room on second floor, in the said application it was also prayed that such further relief as the court deem fit and proper may be granted.. The application was contestsd by the respondents on the ground that the premises had been let out to them at a monthly rent of Rs. 25!-. The said objections filed by the respondents as also the suit was dismissed by the leari.ed trial Judge. The appeal against the dismissal of the suit was preferred which was allowed on terms that tie respondent will be given another opportunity to lead evidence subject to payment of costs. Accordingly the suit went back but finally it was dismissed for default of appearance by the learned trial Judge on 28-7-1978. In the objections filed by the respondents it was held that the rent receipts as also the notice produced by the respondents were forged and the objections were, therefore, dismissed. Consequently the executing court directed the attachment of the property after recording the finding that the respondents had deliberately disobeyed the decree for injunction.