RAJEEV KHANDELWAL Vs. ARUN

JUDGEMENT

(1.) The petitioner in his capacity as landlord of an accommodation of which the respondent was the tenant obtained a decree for eviction of the respondent and for arrears of rent under the provisions of the M.P. Accommodation Control Act, 1961. When the decree was put in execution, the respondent filed an objection purporting to be under Section 47, Code of Civil Procedure, asserting that he had made payment of the decretal amount out of Court to the decree-holder, that a compromise had been arrived at between the parties that the judgement-debtor shall deliver vacant possession of the accommodation to the decree-holder and that it will be again given to the judgement-debtor on an enhanced rent of Rs. 500/- per month, the earlier rent being Rs. 275/- per month. His case further was that he complied with the terms of the fresh agreement and that since he was now in possession over the accommodation in pursuance of fresh agreement of tenancy, the decree under execution had become inexecutable. The case of the petitioner in reply to the said objection was that he never entered into any agreement of fresh tenancy as alleged by the respondent, that no payment whatsoever was made to him by the respondent as alleged by him and that even otherwise the objection raised by the respondent was not maintainable in law inasmuch as the plea set up by him was one about adjustment was not got recorded as certified by the respondent as contemplated by sub-rule (2) of Rule 2 of Order XXI, Code of Civil Procedure, the same could not be recognised by the Court executing the decree in view of the provision contained in this behalf in sub-rule (3) of Rule 2 of Order XXI of the Code of Civil Procedure. This plea raised by the petitioner found favour with the Court executing the decree and the objection raised by the respondent-tenant was rejected.

(2.) The respondent preferred a revision against the order of the Court executing the decree which was allowed by the District Judge on 16th July, 1985. The District Judge took the view that the objection filed by the respondent pertained to execution of the decree as contemplated by Section 47, Code of Civil Procedure, and notwithstanding the provisions contained in Order XXI, Rules 2 and 3, Code of Civil Procedure, the same deserved to be investigated. On this view, after setting aside the order of the Court executing the decree, the District Judge remanded back the case to the said Court with a direction to investigate into the agreement alleged by the respondent-tenant on merits after giving the parties an opportunity to adduce evidence. It is this order dated 16th July, 1985 passed by the District Judge which is sought to be quashed in the present writ petition.

(3.) When the writ petition came up for hearing it was pointed out that on the point in issue whether such an objection as had been raised by the respondent in the Court executing the decree could be entertained by the Court executing the decree in spite of the bar created in this behalf by sub-rule (3) of the Rule 2 of Order XXI, Code of Civil Procedure, there was a difference of opinion between two Division Benches of this Court, namely, in Bahadur Singh Gupta v. Mohammad Ali, 1977 Jab LT 609 and Bherulal v. Ramautar, 1981 MPLJ 333. On the view that there was an apparent conflict in the decision of the two Division Benches, the matter has been referred to a Full Bench and it is thus that the present writ petition has come up before us.