VINODKUMAR RATILAL SHAH Vs. MADHUBALA MADHAV KHARAIT

JUDGEMENT

(1.) These petitions by the judgement-debtor under Article 227 of the Constitution of India raise the question of executability of the decree for eviction of a tenant made under the Bombay Rent Act. The question arises in the following manner. The respondent-judgment creditor is the owner of a building in Pune. The building faces North-South and consists of ground and first floor with a loft over the first floor. On the ground floor there are two rooms. The entrance on the ground floor leads into the front room in the occupation of the petitioner-judgement debtor. The rear door of the front room opens into a passage Beyond the passage is situated the second room-rear room-which is also in the occupation of the judgement debtor. In this passage there is a stair case leading to the first floor. One can reach the first floor by using the stair case and the loft by using the room on the first floor. The passage in which the stair case is situated is closed at both the ends. Consequently, one cannot enter the first floor and the loft without entering the front room on the ground floor which is in the occupation of the judgement debtor.

(2.) The judgment creditors secured a decree for eviction on the ground that she needed the premises for bona fide personal occupation. The decree in Suit No. 1959 of 1975 made by the learned 3rd Addl. Judge Small Cause Court, Pune, ordered the judgment debtor to "deliver possession of the first floor. i.e., two rooms---". The Appeal No. 548 of 1979 by the judgment debtor and the Writ Petition under Article 227 of the Constitution of India were dismissed respectively on 27-10-1980 and 18-9-1982. The judgment creditor made an application on 3-1-1981 for execution of the decree. In this application, she sought possession of the two rooms on the first floor. But, on 30-12-1981 the application was amended and the possession of the entire building except the two rooms on the ground floor occupied by the judgment debtor was sought. The V Additional Judge, Small Causes Court, Pune, who heard the application for execution held that the decree was inexecutable as the judgment creditor cannot secured possession of the two rooms on the first floor without entering into and using the judgment debtors property. The judgment creditor preferred Appeal No. 481 of 1983. The District Court found that the appeal was incompetent and converted it into a Revision application. The learned Judge of the District Court held that the decree is executable and issued certain directions. This order is impugned in Writ Petition No. 3327 of 1984. Writ Petition No. 1964 of 1986 by the judgment debtor is against the order of the District Court in Civil Appeal No. 807 of 1985 by which reversing the order of the Small Causes Court, Pune, dated 15-1-1985, it was ordered that the judgment creditor can take possession of the premises on the first floor by creating access by a stair case through the opening on the ground floor. In Writ Petition No. 1965 of 1986 the judgment debtor impugns the order dated 25-3-1986 made by the District Court, Pune in Civil Appeal No. 806 of 1985 by which it ordered that the judgment creditor shall take possession of the two rooms on the first floor.

(3.) Two points have been urged by Mr. Naik, learned Counsel for the petitioner--- a) The decree is not executable because the judgment creditor cannot entire the two rooms on the first floor, as it has no independent entrance. (b) The execution cannot be granted against the loft because the decree does not extend to the loft, but is confirmed to the two rooms on the first floor.