ABDUL RAHMAN Vs. M A PEER MOHAMMED

JUDGEMENT

(1.) THIS Civil Miscellaneous Second Appeal has been filed against the Judgment dated 21.7.2006 made in A.S.No:258 of 2006 passed by the learned V Additional Judge, City Civil Court, Chennai, confirming the order dated 14.3.2006 made in EA.No.1607 of 2002 in O.S.No:661 of 1997 passed by the learned IX Assistant Judge, City Civil Court, Chennai.

(2.) E.A.No: 3195 of 2005 had been filed by the appellant herein under Order XXI Rule 97 and Rule 101 of CPC read with Section 151 of CPC in the execution court praying to record the appellant's obstruction in the Execution Petition.

(3.) APART from the above to sustain the case of the appellant herein the learned counsel submitted the following contentions:- (a) There is no decree for delivery of possession against the appellant herein who was the third defendant in the suit and a decree of delivery of possession is only against 1st and 2nd defendants. It is pertinent to note that the decree for delivery does not even include the agents, servants or anybody acting under or in trust for the defendants 1 and 2 but only defendants 1 and 2 themselves. (b) Even though the plaintiff had filed a petition for amending the original decree to incorporate the shop portion, along with the material, no petition for amendment of the pleadings or the relief was filed even after the written statement filed by the appellant stating that he was in possession. (c) The very fact that the respondent/plaintiff himself admitted in the sworn affidavit in Contempt Application No.14880/97 on 30.4.1997, that all the items belonging to him had been removed from the suit property by defendants 1, 2 and 3 will clearly indicate that no items of the plaintiff were left in the suit property beyond 30.4.1997 and therefore, cannot be delivered to him consequent to the orders passed in E.P.No.1607 of 2002. (d) During trial of E.A.No.3195 of 2005 the appellant herein deposed that he has been recognized as a tenant by the landlady and a lease agreement had been executed by her under Ex.P.67. Exs.P.1 to P.66 are the rental receipts issued by the landlady to the appellant. Peer Mohammed being no longer the tenant in respect of the suit shop under the landlady, the decree cannot be executed because the suit itself had been filed on the ground that he was the tenant and that the 1st and 2nd defendants were not handing over the business being run therein back to him, besides the Peer Mohammed was not entitled to ask for delivery of possession of the shop wherein he was a tenant at the time of filing of the suit. The subsequent even of the plaintiff no longer being a tenant under the landlady clearly disentitles him from executing the decree. The defendants 1 and 2 no longer being in the suit property, the appellant cannot be evicted as he is not a party to the decree for delivery of possession, passed in the suit. Also, he had been put into possession prior to the filing of the suit itself.