RAKESH SHARMA Vs. SHAKUNTALA RANI

JUDGEMENT

(1.) THIS is an appeal against the order of the Rent Control Tribunal upholding the order of the Additional Rent Controller, Delhi by which the latter dismissed the application of the appellants for stay of execution of the order of ejectment of the demised premises passed in favour of Smt. Shakuntala Rani, respondent No. 1 against Radhey Lal and others, respondents No. 2 to 4, pending disposal of the objections filed by the appellants under Sect. 25 of the Delhi Rent Control Act (for short 'the Act'). Respondent No. 1 had obtained the order of eviction of the premises against respondent No. 2 to 4 on October 15, 1984. She filed an application to the executing court of the Additional Rent Controller for taking out execution of the order of eviction against respondents 2 to 4. A warrant of possession of the premises was issued by the executing court on March 15, 1985 returnable on May 24, 1985. The Bailiff who went to the premises to deliver possession thereof to the decree holder was resisted in the delivery of possessions by objector No. 1. He represented to the Bailiff that he alongwith another person were carrying on business in the premises under the name and style of M/s Pooja Paints. On behalf of the decree-holder it was stated that the persons resisting the delivery of possession of the premises were the persons set up by the judgment debtors. The Bailiff, however, finding that there was an apprehension of breach of the peace in execution of the warrant of possession and the decree-holder informing him that she would apply for a fresh warrant of possession with the help of police, returned the warrant un-executed with his report in this behalf. An application for delivery of possession of the premises with police aid and by breaking open the locks and doors of the premises was then moved by the decree-holder on April 9, 1985. During the pendency of the proceedings on this application the objections under Section 25 of the Act were filed by the appellants on August 1, 1985. Alongwith the objections the appellants filed an application under Section 151 of the Code of Civil Procedure for stay of dispossession pending decision of their objections. In the objection petition it is stated that sometime after the passing of the judgment of the Rent Control Tribunal on October 15, 1984 affirming the order of ejectment as passed by the Additional Rent Controller. Smt. shakuntala Rani, respondent No. 1 through her attorney Subhash Chander had let out the premises to them (objectors) at a monthly rent of Rs. 100/-. They paid Rs. 100/- towards rent for the one month and another sum of Rs. 10,000/- as advance security to Subhash Chander who executed a rent note of the premises in their favour on March 15, 1985. The two objectors, namely Rakesh Sharma and Liyakat Ali, appellants, started carrying on business in the demised premises with effect from March 16, 1985, being partners of the said firm, after having obtained possession of the said premises from the decree-holder. It was stated that the objectors were thus lawful tenants of Smt. Shakuntala Rani who was the owner and the landlady and as such she is not entitled to evict them in execution of her decree obtained against Radhey Lal and others, respondents 2 to 4. The decree-holder contested the objection petition of the objectors as also the application for stay of execution. The Additional Rent Controller having regard to the facts and circumstances as brought out on the record declined to stay the execution of the decree and dismissed the application of the Additional Rent Controller was upheld on appeal by the Rent Control Tribunal. It is against this order of the Rent Control Tribunal that the objectors have filed this second appeal. The decree holder/respondent No. 1 has opposed the appeal.

(2.) MS . Neerja Mehra, learned counsel for the appellants, submitted that according to the provisions of Section 25 of the Act, a person who has an independent title to the premises in respect of which an order of ejectment has been passed is not liable to eviction in execution of an order of ejectment of the tenant. Reference was then made to Section 37(1) of the Act. It was submitted that as per this provision the objections of the appellants were bound to be heard and decided by he executing court after affording the objectors a reasonable opportunity to substantiate the objections by producing such evidence as the objectors may choose to produce in support thereof and that the executing court could not pass any order on the objection petition of the appellant prejudicially affecting the objectors in regard thereto. It was submitted that the being the position of law, the executing court ought to have allowed stay of execution proceedings pending the disposal of the objections of the appellants and by not doing so the appellants would be evicted from the premises and that obviously would cause a serious prejudice to them and would have the effect of almost rendering the objections infructuous. Reference in this regard was made to a decision of a Single Judge of this Court in the case Ved Prakash v. Qumeruddin and anr., 1986(Sup) RCR 626. All that was held in this case is that a person who claims an independent title to the premises regarding which an order of eviction has been passed and filed objections under Section 25 of the Act has a substantive right to be heard with regard to his alleged right, if there be any to the property or to the occupation of the property in dispute and that objections filed by such a person under Section 25 of the Act are in the nature of an independent proceeding and they deserve to be dealt with and disposed of as a substantive proceeding. There is no dispute with this proposition of law. However, the short question for determination in this case is an to whether the executing court before whom objections under Section 25 of the Act are filed is bound to stay the execution of the order of ejectment on the mere filing of the objections against execution by a third person claiming an independent title to the premises or the executing court has got the power to deal with the application for stay on its own merits, including the power to decline stay in appropriate cases. I am of the view that having regard to the provisions of Section 37(1) of the Act such objections cannot be summarily rejected by the executing court and they have to be inquired into and disposed of by the executing court after allowing the parties an opportunity to adduce their respective evidence in support or in opposition thereof. There is nothing is Section 37(1) of the Act from which it necessarily follows that pending enquiry in such objections of a third person the executing court is bound to stay execution of the order of ejectment. The question of stay of execution proceedings is a separate and independent act distinct from the objections, although connected therewith. The point is not res integra. In the case of Pradeep Kumar v. Ranjit Kaur, 29 (1986) DLT 390 : 1986 (Sup.) RCR 204, G.C. Jain, J. held that it could not be said that in such a situation stay must be granted the moment somebody files objections under Section 25 of the Act. It that were the law no landlord decree holder would ever be able to execute his decree, observed the learned Judge. His Lordship declined to interfere with the order of the Rent Control Tribunal which had upheld the order of Rent Controller declining stay pending enquiry of the objections under Section 25 of the Act. I find myself in complete agreement with the view as taken in that case and hold that the Additional Rent Controller did have the power to decline stay of execution proceedings pending enquiry of the objections of the appellants.

(3.) THE parties are directed to appear before the executing court of the Additional Rent Controller, Delhi on September 16, 1987. The record of the case be sent back at once. Appeal dismissed.