SURESHWAR PRASAD SINGH Vs. KEDARNATH VERMA

JUDGEMENT

(1.) This appeal by the judgment-debtors (defendants 4 and 5) arises out of an execution proceeding. The executing court upheld their objection to the executability of the decree and found that the execution was not maintainable. The lower appellate court has set aside that order. According to it, the execution was maintainable.

(2.) The decree-holder-Respondent instituted Title Suit No. 250 of 1960 in the Court of Munsif 1st, Gaya, for eviction of the tenants from holding Nos. 200 and 201 of that town, on the grounds of default in payment of rent, sub-letting and personal necessity. According to the case of the Respondent in the plaint, the holdings were let out to defendants 1 to 3 on monthly rental of Rs. 9/- and they had sub-let the same to defendants 4 and 5. Defendants 6 and 7 were made parties to the suit as they were men and creatures of defendants 1 to 5. The suit was decreed on 22nd June, 1962 in terms of a compromise petition filed before that court as against defendants 4 to 6 and ex parte against defendants 1 to 3 and 7. The terms of the compromise petition were that defendant No. 6 would have no concern with the holdings from the date of the compromise and defendants 4 and 5 would remain in possession of the holding on payment of monthly rental of Rs. 25/-. In case of default of payment of rent by them for any month, the plaintiff would be entitled to get them evicted in execution of that very decree. The plaintiff would also be entitled to get defendants 4 and 5 evicted from the holdings, if he needed it for himself in execution of the very decree after getting notices under Order 21, Rule 22 of the Code of Civil Procedure (hereinafter to be referred to as 'the Code') served upon them. The respondent levied Execution Case No. 119 of 1965 praying for eviction of the appellants after service of notice under Order 21. Rule 22 of the Code on them as he needed the holdings for himself and also on the ground that the appellants had defaulted in payment of rent since the month of April, 1965. The execution petition was filed in July, 1965.

(3.) After service of notice under Order 21, Rule 22 of the Code on them, the appellants appeared in the execution case and filed an objection which was numbered as Misc. Case 163 of 1965. The grounds in support of the objection which appeared to have been pressed in the courts below were,--