HIFZUR REHMAN Vs. VITH ADDL DISTRICT JUDGE

JUDGEMENT

(1.) Feeling aggrieved by an order whereunder the revisional court exercising the jurisdiction under Section 25 of the Provincial Small Cause Courts Act has set aside the order passed by the executing court rejecting an objection filed by the tenant-judgment debtor under Section 47 of the C.P.C., the landlord-plaintiff has now approached this Court for redress seeking the quashing of the revisional order. The facts shorn of details and necessary for the disposal of this case are that a suit filed by the respondent-plaintiff seeking a decree for ejectment and recovery of arrears of rent and damages for use and occupation of the premises in dispute was decree by the Judge Small Causes Court on 8-10-80. Under the terms of the compromise, which formed part of the decree the judgment debtor defendant had been granted time upto 30-9-84 for vacating the premises and it was provided that in case the possession was not handed over to the plaintiff by the date fixed, in that event the decree will become executable. In the execution proceedings an objection was filed by the petitioner alleging that on 1-7-84 under an oral agreement the decree holder had accepted the defendant-judgment debtor to be his tenant and in view of this fresh contract of tenancy the decree had become inexecutable.

(2.) The executing court refused to place any reliance upon such an oral agreement whereunder a fresh contract of tenancy had been asserted to have been entered into between the decree holder and judgment debtor on the ground that the same had not been got recorded and certified as envisaged under Order XXI Rule 2, C.P.C. Further the executing court, on an appraisal of evidence, recorded a finding that no such oral agreement as set up by the judgment debtor had been proved to have been entered into. Consequently the objection under Section 47 of the C.P.C. was rejected.

(3.) The order of the executing court rejecting the objection under Section 47 of the C.P.C. was challenged by the judgment debtor tenant in revision under Section 25 of the Provincial Small Causes Courts Act. The revisional court, however, reversed the finding of the executing court on the question relating to the applicability of Order XXI Rule 2, C.P.C. being of the view that the certification envisaged under that provision was not at all required on the ground that the claim of fresh tenancy set up by the judgment debtor could not be deemed to be within the purview of 'adjustment' contemplated therein. The revisional court further appears to have re-appraised the evidence and the materials on record and reversing the finding of the executing court held that the fresh tenancy claim by the judgment debtor stood established. In view of the aforesaid findings the objection under Section 47 of the C.P.C., filed by the tenant judgment debtor was allowed and the decree dated 8-10-80 was held to be inexecutable.