SHYAM SUNDER Vs. MODA RAM

JUDGEMENT

(1.) THIS is a judgment-debtor's execution second appeal against the order dated 9. 1. 1976 passed by the District Judge, Bikaner, whereby he dismissed the appellant's first appeal against the order dated 22. 10. 1975. of the Munsif, Bikaner, dismissing the appellant's objections against execution of the decree.

(2.) FOR disposal of this appeal it would be proper to recall a few facts.

(3.) SHRI S. C. Bhandari, learned counsel for the decree-holder-respondent, , on the other hand, submitted that the averments in paras 3 and 4 (kh) of the plaint clearly make out the case under clause (a) of sub-section (1) of Sec. 13 of the Act. The defendant also took it to be a case under clause (a) of Sec. 13 (1) as would be clear from the averments made in the written statement and it was in view of the pleadings of the parties that issue No. 5 was struck to the effect that the defendant is a defaulter and the parties went to trial on this issue. Mr. Bhandari submitted that there had been no such case and such a plea was not raised in the suit. Such a plea was not raised even by the judgment-debtor in the objections filed by him. The appellant should not be permitted to raise this objection for the first time in this appeal. Besides that, Mr. Bhandari pointed out that the decision of this Court in Rajendra Kumar vs. Jamna Das (supra) has no application to the facts of the present case in view of the variance in pleadings. According to him, in that case, the plaintiff's averment was simply this that the defendant has paid rent upto a certain date, namely 31. 12. 1967 and thereafter has not paid rent despite repeated demands. There was no pleading to the effect that the defendant was a defaulter and that the defendant allowed the rent to fall in arrears. He also pointed out that the defence was that the defendant is not a defaulter in view of the fact that the plaintiff did not deliberately accept rent after April 1968. It was offered to him many times, but the plaintiff refused to accept the same and thereafter it was sent by money order and even then the plaintiff did not accept the amount of rent. He referred to the finding on issue No. 5 recorded by the trial court, wherein it is stated that the defendant has failed to prove that the amount of rent was ever sent by money order as no money order receipt has been produced. He urged that the plea of non-offer by the defendant is explicit in para 4 (kh) or in any case implicit and the parties went to trial on that basis that there is a plea of non-offer of amount of rent by the defendant.