ELLORA FURNITURE AND ITS PROPRIETOR NARAYANBHAI GOWARDHANBHAI JULAPARA SINCE Vs. SHANTILAL KISANDAS GANGWAL

JUDGEMENT

(1.) SINCE execution proceeding is required to be stayed because of pendency of challenge to rejection of application under Section 47 by judgment debtor, the parties agreed and accordingly the revision petition was finally heard. This revision petition impugns order dated 21-3-2002 passed below Exhibit 47 in Regular Darkhast No. 94/1999 by Civil Judge, Junior Division, Shrirampur.

(2.) IN the execution proceeding numbered as Regular Darkhast No. 94/1999, decree for possession passed in Regular Civil Suit No. 366/1985, which was agitated and ultimately confirmed right upto the Supreme Court, is being sought to be executed. After service of notice under Order 21, Rule 22, present revision petitioner/original judgment debtor, on 9-3-2002 filed an application under Section 47 of the Code of Civil Procedure, inter-alia, contending that the judgment debtor did not agree to the prayer for possession, except the properties described as 1-A and 1-C in the schedule to the execution proceeding. According to judgment debtor, in the plaint of Regular Civil Suit No. 366/1985, decree holder had specifically pleaded that property described in plaint para 1-B and open space in the plots described in plaint para 1 were owned and in possession of the landlord. It was categorically pleaded that open space was not subject matter of the dispute. It was further pleaded by plaintiff that he had kept a passage in the eastern portion of the plot in order to approach southern open space and defendant had closed the said passage by parking goods trucks on the same. Defendant was alleged to have obstructed the passage also by putting a gate under lock and key to the said passage. It was further alleged that room described in plaint para 1-D was constructed by the defendant and defendant continued to use the same unlawfully. Thus, as per the pleadings, open space in the plot described in plaint para 1 and property described in plaint para 1-D (small room - cum servant's quarter allegedly constructed by defendant), were not the properties let out to the defendant. Therefore, the plaintiff could not have prayed for possession of these properties from the defendant in the capacity of a tenant, nor plaint was ever amended to that effect, till final decision of the suit. Consequently, trial Court had no jurisdiction to pass a decree regarding open space described in plaint para 1 and property described in plaint para 1-D. The decree passed by the Court to that extent is, therefore, without jurisdiction and hence nullity. The application was concluded by informing that the defendant/judgment debtor has given an undertaking to deliver the possession of the properties described in plaint para 1-A and 1-C on or before 20-2-2002. However, it is necessary to adjudicate whether decree can be executed so far as open space of the plots described in plaint para 1 and property described in plaint para 1-D.

(3.) AFTER taking into consideration say filed by decree holder, executing Court rejected objections raised by judgment debtor vide impugned order dated 21-3-2002. The executing Court observed that suit is decreed by trial Court directing the judgment debtor to deliver possession of suit properties 1; 1-A, 1-C and 1-D. In fact, in application under Section 47, the words, sentence from the are deleted by erasion. his is in the latter half of para 3 at page 2 of the application and yet at the end of para 3, handwritten contents are added as consequently, executing Court has discussed the objection as if it is objection to claim for delivery of possession of property described in plaint para 1-D. From the contents of application under Section 47 and plea of the judgment debtor that he is ready and willing to deliver possession of properties described in plaint para 1-A and 1-C only, it is evident that application under Section 47 of Civil Procedure Code filed by judgment debtor is an objection raised to the delivery of possession of the property described in plaint paras 1 and 1-D. This position was admitted by Advocates S/shri S. D. Kulkarni for judgment debtor and M. N. Nawander for the decree holder. The two Advocates also agreed that the reasons recorded by the Judge, although referred to only property 1-D, those are pertaining to properties 1 and 1-D. The decree passed by trial Court was agitated in appeal before District Court, by a writ petition before High Court, and also Special Leave Petition before the Supreme Court, which all came to be dismissed. Consequently, the decree passed by the trial Court is not at all modified or revised. Executing Court, therefore, expressed inability to agree with the contention of the judgment debtor that other properties than those described in paras 1-A and 1-C were not the subject matter. In fact, according to learned Judge, property described in para 1 of the plaint including vacant premises was the property let out to the judgment debtor. The entire property described in the plaint, except 1-B, being the properties in question, according to executing Court, it was not open for judgment debtor to contend that part of decree passed was nullity for want of jurisdiction. The learned Judge, thus, rejected the objections raised and directed issuance of possession warrant against the Judgment debtor.