SUSHANTA SETHI Vs. SK MANJAR ALLI

JUDGEMENT

(1.) SUSHANTA Sethi, petitioner herein, in this writ petition under Articles 226 and 227 of the Constitution of India has prayed to quash the order of the Additional District Judge, Balasore, passed in Civil Revision No. 69 of 1997 rejecting his prayer for interim stay of further proceeding in Misc. Case No. 167 under Order 21, Rule 97, CPC arising out of Execution Case No. 6 of 1996 till the disposal of the Probate Proceeding in Probate Misc. Case No. 3 of 1997 on the file of the District Judge, Balasore.

(2.) FOR better appreciation of the questions involved it is necessary to give a brief fact of the case as under : Opposite parties 1 and 2 (hereinafter referred to as 'landlords') are the owners of two rooms having area, of 9' -3'x 14' and 33'xl4' and one shed of size 42' -3'x l8' situated abutting the Balasore Port Road which they let out to Bhikari Charan Sethi, father of the petitioner, on monthly rent basis. In the tenanted premises petitioner's father installed a fabrication unit in the name and style of M/s. Sushant Industries'. In 1983 he died leaving behind his son, the petitioner, and widow Saraswati, opposite party No. 3. It is the petitioner's case that his father bequeathed the fabrication unit by a registered Will in his favour when he was a minor. After attaining majority he has approached the District Judge, Balasore, in Misc. Case No. 3 of 1997 for grant of letters of administration in respect of the said Will. In the said proceeding landlords have entered appearance and challenged the petitioner's prayer for grant of letters of administration. The further case of the petitioner is that the landlords initiated an eviction proceeding in H.R.C. Case No. 13 of 1987 Under Section 7(1) and (4) of the Orissa House Rent Control Act, 1967 against the opposite party No. 3. In the cause -title she was described as the sole proprietor of 'Sushant Industries'. She contested the case by filing written statement. Her positive assertion was that upon the death of her husband in September, 1983 the said Industries devolved upon her and her son, petitioner herein. In view of such plea taken by opposite party No. 3. the landlords applied to implead the present petitioner as opposite party No. 2. There being no objection to such prayer the learned House Rent Controller was of the opinion that the petitioner is a necessary party in whose absence the case could not be properly adjudicated. Accordingly it allowed the prayer of the landlords, whereupon the petitioner was added as opposite party No. 2. But before he was served with notice, his name was deleted from the record. Thus the H.R.C. case proceeded against opposite party No. 3 alone and ultimately order for eviction was passed against her. Though she challenged the order of the House Rent Controller in appeal, but was unsuccessful. She also moved this Court in a writ petition which also met with the same fate. Thereafter the landlords moved the Civil Judge (Junior Division), Balasore in Execution Case No. 6 of 1996 to execute the decree. Coming to know that the aforesaid execution proceeding has been levied against his mother, the petitioner moved the executing Court under Order 21, Rule 97, CPC which was registered as Misc. Case No. 167 of 1997, resisting the landlords' prayer for delivery of possession. In a separate application he also prayed for stay of further proceeding in the Execution Case till disposal of the probate proceeding. Learned executing Court upon hearing stayed further proceeding of the Execution Case. This order of stay was not challenged by the landlords by way of revision. They however, moved this Court under Articles 226 and 227 of the Constitution of India in O.J.C. No. 9120 of 1997. On the date of admission a contention was raised by the learned counsel for landlords for a direction to the executing Court to dispose of the petition filed under Order 21, Rule 97 CPC within specified time. The above being the limited prayer the Court directed the learned Civil Judge (Junior Division), Balasore, to dispose of the said petition within a period of three months from the date of communication of the order. The petitioner was unaware of the said order since the writ application was disposed of at the stage of admission. The landlords suppressed the material fact that the petitioner's application for grant of letters of administration is pending adjudication before the District Judge. It is alleged that unless the petitioner's right under the Will is established and letters of administration is issued, no relief can be granted as prayed for in the aforesaid Misc. Case No. 167 of 1997 filed under Order 21, Rule 97, CPC The petitioner, therefore, filed an application for stay of further proceeding in the said Misc. Case till disposal of the probate proceeding. Confronted with the order of this Court passed in the writ petition as aforesaid, the executing Court rejected the prayer. Against the said order of refusal the petitioner moved the District Judge in Civil Revision No. 69 of 1997 which came to be disposed of by the learned Additional District Judge and by the impugned order the appellate Court declined to grant stay with observation that any such direction would contravene the order passed by this Court. Dissatisfied with the order passed by the learned Additional District Judge, the petitioner has filed the present writ petition.

(3.) PER contra, Shri S. Mishra -2, learned Counsel appearing for the landlords, submitted that after the death of Bhikari Sethi, the tenant, the tenancy was determined, whereupon a fresh tenancy was created in favour of opposite party No. 3. She being the tenant in eye of law, the landlords in order to evict her from the tenanted premises, moved the House Rent Controller, Balasore. The proceeding was hotly contested between the parties and ultimately order of eviction was passed. Opposite party No. 3 fought the litigation to protect her tenancy right upto this Court but to of no effect. Ultimately when the decree was levied for execution, the petitioner in order to delay the matter filed the petition under Order 21, Rule 97, CPC urging that the fabrication unit belonging to his father has devolved upon him by virtue of a Will and that he, and not his mother, is the tenant in respect of the tenanted premises. Shri Mishra further argued that even if it is accepted for a moment that the Will is a genuine one, but since the fabrication unit has been bequeathed to the petitioner, he acquired right in respect of the said unit and not over the tenanted premises and therefore, the grant of probate or letters of administration will not stand on the way of the landlords to recover possession of the tenanted premises in the execution proceeding.