SURESH CHAND LAKHERA Vs. GOVIND NARAYAN AND ORS.

JUDGEMENT

(1.) THIS petition has been filed against the order dated 13.02.2013, passed by the Additional District and Sessions Judge, Dausa (hereinafter 'the executing Court'), whereby the learned executing Court, in pursuance of the execution of a decree for eviction and recovery of rent passed ex -parte on 07.03.2003 by the District Judge, Dausa, has held that in the background facts of the case including the matter travelling upto the Hon'ble Supreme Court in civil appeal No. 7114/2012 the decree was executable against the petitioner -judgment -debtor. Mr. S.R. Surana, Sr. Advocate with Mr. K.K. Chawal, appearing for the petitioner -judgment -debtor submits that the judgment -debtor in the decree dated 07.03.2003, the petitioner herein, was at no point of time the tenant of the respondent -decree -holder, nor in possession of the shop in dispute. He submits that in fact in the course of proceedings before the trial Court, one Shakti Singh was appointed as Commissioner who in his report dated 08.08.2000 recorded the factum of the petitioner -judgment -debtor not being in possession of the suit property and instead one Hanuman Sahai Sharma being in possession. It is submitted that even otherwise there was no material before the trial Court while passing the ex -parte decree dated 07.03.2003 to conclude that the petitioner -judgment -debtor had any point of time as the alleged tenant made over any rent to respondent -decree -holder as landlord. He submits that a suit for declaration against the ex -parte decree dated 07.03.2003 praying that it be declared as null and void against the petitioner -judgment -debtor has been filed before the District Judge, Dausa. It is submitted that in this view of the matter, till the question of the petitioner -judgment -debtor's alleged tenancy of the respondent -decree -holder Govind Narayan is determined, the recovery of any amount under the ex -parte decree dated 07.03.2003 is wholly illegal and therefore should be restrained.

(2.) MR . Manoj Bhardwaj, appearing for the respondent -decree -holder, on the other hand has submitted that against the ex -parte decree dated 07.03.2003, the petitioner -judgment -debtor had filed an application under Order 9 Rule 13 CPC in the year 2003 itself. That application came to be dismissed by the trial Court on 04.08.2008. A review then filed qua the order dated 04.08.2008 by the petitioner -judgment -debtor, which however came to be dismissed on 21.08.2009. It is submitted that the order dated 04.08.2008 passed by the trial Court dismissing the application under Order 9 Rule 13 CPC was also put to challenge by way of a civil misc. appeal No. 4797/2009 before this Court. Thereon this Court passed a conditional order dated 20.01.2010 whereby the petitioner -judgment -debtor was required to deposit a sum of Rs. 1,35,000/ - with the trial Court and also furnish a surety to the satisfaction of the trial Court to an extent of Rs. 2,20,000/ -. He submits that the conditions for the setting aside of the ex -parte decree dated 07.03.2003 under the order of this Court passed on 20.01.2010 were however not satisfied and consequently the ex -parte decree dated 07.03.2003 against the petitioner attained finality. It is submitted that thereafter the petitioner -judgment -debtor filed a suit in 2010 for declaration and permanent injunction seeking a declaration of the ex -parte -decree dated 07.03.2003, passed by the trial Court, as null and void and for declaring that no landlord tenant relationship existed between Govind Narayan and the petitioner Suresh Chand Lakhera. No interim order has been, or could have been passed in the said suit for reason of the petitioner's status as a tenant having been held up to the Hon'ble Apex Court. The said suit, counsel submits, is on the face of it hit by limitation having been filed in 2010, even though the petitioner -judgment -debtor had knowledge of the ex -parte decree dated 07.03.2003 in 2003 itself which is evident by his moving an application at the relevant time under Order 9 Rule 13 CPC there against. Counsel submits that thereafter merely on the basis of the suit for declaration and injunction as aforesaid filed by the petitioner -judgment -debtor, an application was moved before the executing Court seeking stay of the execution of the ex -parte decree dated 07.03.2003. Vide order dated 22.01.2011 the learned executing Court wrongly stayed the execution of the ex -parte decree dated 07.03.2003. Aggrieved of the order dated 22.01.2011 passed by the executing Court, the respondent -decree -holder filed a writ petition bearing No. 4329/2011 before this Court. Thereupon this Court vide order 27.04.2011 stayed the order dated 22.01.2011 passed by the executing Court. Consequent to which the ex -parte decree dated 07.03.2003 became executable.

(3.) HEARD the counsel for the petitioner -judgment -debtor and the respondent -decree -holder.