SHUBHASHCHANDRA BABULAL Vs. NANDLAL LAXMICHAND

JUDGEMENT

(1.) BY this Miscellaneous Appeal, the judgment-debtor seeks interference with the order made by the Executing Court refusing to entertain his objection purporting to be one under section 47 read with order 21, Rule 2, Civil Procedure Code.

(2.) THE facts and circumstances relevant for the purpose of this miscellaneous Appeal are that a decree for eviction and arrears of rent was passed against the appellant-judgment-debtor in favour of the respondent-plaintiff-landlord in the year 1972. The execution proceedings were instituted in the year 1977 after the said decree had become final. When the judgment-debtor was noticed, he came with a plea that subsequent to the passing of the decree one day during night hours, the decree-holder had granted a fresh lease in his favour on a monthly rent of Rs. 125 and had also granted time for making payment of arrears of rent under the decree. The objection, therefore, was that in view of the subsequent completed contract granting a fresh monthly lease, the decree for eviction ceased to exist and accordingly having been extinguished, the decree was not liable to be executed in execution of the same. It would be significant to mention that the aforesaid contention was based purely on oral evidence and there was nothing in the shape of documentary evidence in any manner to support the alleged grant of fresh lease.

(3.) THE Executing Court refused to entertain the said objection that since in substance, the judgment-debtor wanted to rely on an adjustment of the decree by pleading a subsequent completed contract of fresh lease, the subject matter was governed by the provisions of Order 21, Rule 2, Civil procedure Code and accordingly, the provisions of Rule 2 (a) of Order 21, as inserted by the Amendment Act of 1976, which were already in force on the date of the alleged adjustment, became attractive. The provisions of rule 2 (a) provide that no such request for adjustment would be entertained unless the same was supported by documentary evidence. Since undisputedly there was no such documentary evidence produced or even pleaded, the executing Court dismissed the objection in limine.