VADODARIA VADILAL HIRACHAND Vs. THAKAR JAYANTILAL MAGANLAL

JUDGEMENT

(1.) A very short question which arises in this revision is as to whether the respondent-original defendant No. 4 - judgment debtor - is bound by the decree passed in Civil Suit No. 2 of 1958.

(2.) In this revision under Sec. 115 of Code of Civil Procedure, 1908 (hereinafer referred to as the 'Code'), the challenge is against the order passed by the Execution Court in a Special Execution Application No. 25 of 1982 recorded on 1 5/12/1988, wherein, the Executing Court upheld the contention of the respondent that he is not liable to hand over the actual physical possession of part of the premises in his possession as he is a protected tenant therein.

(3.) The learned counsel appearing for the petitioner has raised the following contentions while challenging the impugned order passed by the Executing Court :- (i) that there was an implied surrender of tenancy. (ii) that judgment-debtor cannot be allowed to approbate and reprobate. (iii) that there was a merger of tenancy right in the agreement of sale coupled with position in that capacity and recovery of rent from other tenants.