BADRI NARAYAN BHAGAT Vs. PARULRANI GHOSE

JUDGEMENT

(1.) This civil revision by the judgment debtor arises out of an order of the executing Court refusing to entertain an application under Section 47, C. P. C.

(2.) PETITIONER was a monthly tenant of a house under Anilbihari Ghosh, predecessor in interest of the present decree -holders. Anil Bihari filed an application for eviction of the petitioner in the year 1984 under the Orissa House Rent Control Act. After getting the order of eviction, he intimated an execution proceeding for eviction of petitioner. Such proceeding could not advance further since petitioner' assailed the order at different stages. Lastly. O. J.C. No. 2159 of 1990 was filed by petitioner in this Court. By order dated 19 -11 -1990, this Court disposed of the writ application with the following directions : (i) That the petitioner shall vacate the tenanted premises and make over vacant possession to the opp. parties 3, 4 and 5 on or before 31st July, 1991; (ii) For occupation of the premises till the date of eviction the petitioner shall pay rent as stipulated; (iii) The petitioner shall furnish an undertaking to the executing Court within two weeks from today to the above effect and in case no such undertaking is filed within the stipulated period the petitioner shall be evicted forthwith. Petitioner did not give the undertaking within the stipulated period. Therefore, he was liable to be evicted forthwith. In view of this order, executing Court directed by order dated 5 -12 -1990 to give delivery of possession to opposite parties. Despite the same, execution proceeding continued till 31 -7 -1991, on which day petitioner filed an application that the decree is no more executable as the decree -holders have executed an agreement in his favour to sale the house. Copy of the agreement was also filed along with the application. Decree -holders filed objection denying to have executed the agreement. This was supported by an affidavit.

(3.) MR . S. P. Misra, learned counsel for the petitioner submitted that when allegations of executability to the decree are made, executing Court is to consider the same under Section 47, C. P. C. Agreement dated 30 -7 -1991 being a subsequent event, executing Court ought not to have rejected the application and entertained the same under Section 47 C. P. C. to make an enquiry. Mr. Misra relied upon a decision reported in 1990 (II) OLR 20 (Kairu @ Kali Kisan and Anr. v. Smt. Munki Kisani and Ors.) where the question whether there was delivery of possession to the decree -holder, was the subject matter of consideration. This Court held that the question whether the decree has been satisfied on delivery of possession is a matter which comes within Section 47, C. P. C. Mr. Misra relied upon a decision reported in 1990 (II) OLR 440 (Smt. Radhi Dei @ Subarna Jena v. Lalit Bihari Mohanty) where decree of eviction from a house by Civil Court was subject -matter in the execution proceeding. While execution case was proceeding, land on which the house stood, vested in the State Government under the Orissa Estates Abolition Act. Thus, the decree -holder has lost title to the land. On that basis, it was held that executability of the decree is a subject -matter which is to be considered under Section 47, C. P. C. on the facts of this case, principles decided in the aforesaid two decisions have no application.