ALAKRANI KUER Vs. BAHRAIN TIWARI

JUDGEMENT

(1.) -This application is directed against an order, dated the 2nd April, 1974, passed by Munsif I, Gaya, in Execution Case no. 94 of 1969, rejecting the application of the original petitioner Girijanandan Sharma (after whose death the present petitioners have been substituted) under order 21, Rule 58, Code of Civil Procedure,

(2.) One Ram Khelawan Tewari alias Ram Kewal Tewari got a decree in a suit for eviction against Radhey Shyam Sharma (opposite party no. 2). He put the decree in execution in Execution Case no. 94 of 1969. For some reason or the other, the decree could not be executed when on 6.6.73 the original petitioner filed an application before the learned Executing court under order XXI, Rule 58, Code of Civil Procedure. It was stated in the said application that the judgment- debtor Radhey Shyam Sharma had given up possession of the house, holding no. 59/74, in Mohalla Fatehganj, Gol Bagaicha, Gaya, and the decree-holder had taken possession sometime in July 1972. It was further stated that the decree- holder (Ram Khelawan Tewari) Jet out the house to the petitioner Girijanandan Sharma on 21.7.72 on a monthly rental of Rs. 30 and received a sum of Rs. 60 as rent for the months of July and August, 1972. On the same date, after occupying the house, the petitioner is said to have requested the decree-holder to reduce the rent to the level of fair rent. This annoyed the decree-holder who asked the petitioner to vacate the house. The petitioner lodged a sanha on 21.7.72 itself against the son of the decree-holder. Later, it was claimed that the petitioner sent rent for the pariod 21.9.72 to 21.10.72 through money-order, which was refused. He filed a petition before the House Controller for fixation of fair rent which is still pending. In the meanwhile, the decree-holder is said to have obtained an order in the execution case for taking possession of the house with the help of the police. The petitioner, therefore, chose to file the application under order 21, Rule 58, Code of Civil Procedure, for recalling the writ of delivery of possession since, according to him, the decree had already been satisfied against the judgment-debtor. This application was numbered as Mis- cellaneous Case no. 19 of 1973. The application was ultimately dismissed by the impugned order dated the 2nd April, 1974.

(3.) Learned counsel appearing for the petitioners contended that the impugned order was passed without affording them an opportunity to be heard and to produce evidence in support of their case. According to learned counsel, the claim of the petitioner-claimant was not investigated in accordance with the provisions of Order 21, Rule 58, of the Code of Civil Procedure, and it was decided ex parte. It will appear that Miscellaneous Case no. 19 of 1973 was filed on 6.6.73 several adjournments were granted in the case mostly at the instance of the original petitioner Girijanandan Sharma. Ultimately the miscellaneous case was fixed for hearing on the 2nd April, 1974, Girijanandan Sharma again filed an application for adjournment and after filing the application left the court. This was only a delaying tactics and the matter could not be prolonged any further. Where a third party has a claim or an objection, two courses are open to him. He may file a suit claiming an appropriate relief or an application under order 21, Rule 58, Code of Civil Procedure, before the executing court. The remedy provided under this Rule is to secure a speedy settlement of the question raised in the execution case. In such matters the enquiry is only a summary investigation and not a full-dress trial. The proviso to Rule 58 of order 21 provides that no such investigation shall be made where the court considers that the claim or objection was designedly or unnecessarily delayed. The court, therefore, can reject the claim on grounds of delay. In the present case, the matter hanged on for about ten months and when the stage for investigation came, the original petitioner Girijanandan Sharma, after filing an application for time, absented himself without caring to know whether time had been granted in the case. The execution case itself had been filed in the year 1969, the suit having been filed in the year, 1964. There had already been sufficient delay in the execution of the decree which was passed in 1969. The executing court rightly came to the conclusion that this was a belated attempt on the part of the origional petitioner Girijanandan Sharma to obstruct the execution of the decree. The judgment-debtor having failed, it appears, he set up Girijanandan Sharma at a later stage to obstruct and delay the execution of the decree. The executing court could not indefinitely wait to investigate the question when Girijanandan Sharma himself was not anxious for it. In such a situation, even without investigating the claim, the application under order 21, Rule 58, Code of Civil Procedure, by a third party can be dismissed if the executing court is satisfied that the application is frivolous and has been made with the sole object of delaying the proceeding.