SUNIL JAIN Vs. ZAMIRUDDIN

JUDGEMENT

(1.) This Execution Second Appeal is filed by the appellant/objector/Sh. Sunil Jain against the impugned judgment dated 28.9.2015 of the first appellate court. The first appellate court allowed the appeal filed by the respondent/decree holder/Zamiruddin and set aside the judgment of the executing court dated 13.3.2015 whereby the executing court had allowed the objections filed by the present objector and thereby refused to grant execution of the decree for possession dated 28.9.2004 passed in favour of the respondent/decree holder.

(2.) Before turning to the facts of the present case I would like to note that the first appellate court has indeed given a very elaborate, exhaustive and thorough judgment dated 28.9.2015. The issues at hand have been discussed in a threadbare manner. Even this Court could possibly can do no better and therefore this Court would at the relevant places simply reproduce the relevant portions of the impugned judgment dated 28.9.2015 as regards the issues decided for the purpose of dismissing this execution second appeal.

(3.) The property in question is property bearing no.C-5/210, Yamuna Vihar, Delhi. Admittedly the respondent/decree holder is the allottee of this property from the Delhi Development Authority (DDA) inasmuch as DDA had executed a perpetual lease deed in favour of the respondent/decree holder. One Shanu Mohd. had claimed to be a tenant in possession of the suit property and who filed a suit for injunction against the respondent/decree holder whereby Shanu Mohd. claimed rights of a tenant in the suit property. In this suit filed by Shanu Mohd. the respondent/decree holder filed a counter-claim. It is this counter-claim which was decreed by the first appellate court and which judgment and decree is the subject matter of the present execution proceedings. The civil court in which Shanu Mohd. filed a suit claiming rights as a tenant, and in which counter-claim was filed by the respondent herein, both the suit and counter-claim were dismissed by the first/trial court. Respondent/decree holder/Zamiruddin appealed against the judgment of the trial court and this appeal being RCA No.51/2002 was allowed by the first appellate court of Ms. Anju Bajaj Chandna, Addl. Senior Civil Judge in terms of the judgment dated 28.9.2004. As a result of the judgment dated 28.9.2004, a decree for possession stood passed in favour of the respondent/decree holder and against the judgment debtor/Shanu Mohd. The formal decree in RCA No.51/2002 was drawn on 22006 after the requisite court fee was paid by the respondent/decree holder, and which court fee was required to be paid in terms of the judgment of the first appellate court because the entitlement of possession as per the decree was to arise on payment of 50% of the court fee on the market value of the property in question.