SARLA DEVI Vs. HUKAM CHAND

JUDGEMENT

(1.) THIS revision petition has been filed by the petitioners- landlord against the order dated June 1, 1984, vide which execution application of the petitioners was dismissed on the ground that the decree passed in their favour was not executable. It is apparent from the records that the predecessor-in-interest of the petitioners filed a suit for possession of the vacant land along with one room measuring 22' x 8', description of which was given by them in their plaint, which was rented out to the respondent at the rate of Rs. 25/- per month. In that suit, prayer was also made for recovery of rent due, amounting to Rs. 833.75. Suit was deceased vide judgment and decree dated December 29, 1975. The petitioners were held entitled to get possession of the property in dispute and also recovery of rent of Rs. 325/-. Respondent went in appeal, which was disposed of on September 16, 1976, on the basis of a compromise arrived at between the parties. As per decree passed by the appellate Court below, the petitioners were not to execute the decree for ejectment till December 31, 1979, and thereafter the respondent was entitled to remove the Malba from the property in dispute at his own costs. Liberty was granted to the petitioners to withdraw the amount lying deposited at the instance of the respondent in the trial Court. It was further ordered that the respondent shall continue to deposit rent due after every six months at the rate of Rs. 650/- per six months and Rs. 50/- towards house-tax. It was also ordered that in case any default was committed by the respondent, in deposit of amount, as referred to above, the decree-holder would be entitled to execute the decree at once. When after the stipulated period, respondent-tenant failed to vacate the property in dispute, the petitioners filed execution application, which was dismissed by the executing Court below vide the impugned order. Hence this revision petition.

(2.) BEFORE the executing Court, it was contended by the respondent that the decree passed was not executable in view of the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short the Act). It was further stated that the execution application was barred by the principles of res judicata and that after passing of the order by the appellate Court, as referred to above, a fresh tenancy had been created in favour of the respondent-tenant at the rate of Rs. 1300/- per year. The executing Court below, while dismissing execution application, has specifically held that the petitioners were competent to file the execution application for recovery of amount due to which the decree-holder is entitled. It was also held that the principle of res judicata was not applicable, as alleged by the respondent. It was further held that after passing of the judgment by the appellate Court below, no fresh tenancy was created in favour of the respondent-tenant. Qua that finding, no appeal/cross-objection has been filed by the respondent. The executing Court has dismissed the execution application primarily on the ground that in view of applicability of the provisions of the Act, the decree has become in executable as the period of exemption from the provisions of the Act has already expired.

(3.) BOTH these issues were decided together and it was held by the trial Court in its judgment dated December 29, 1975, as under :