BHAGIRATH Vs. SHRI OSWAL SAMAST NYATI SAMITI, PHALODI

JUDGEMENT

(1.) THE judgment debtor petitioner has filed this petition u/S 115 C.P.C. against the order dated 23.3.1996 passed by Shri Ummaid Singh Solanki, Civil Judge (S.D.), Phalodi in execution case No. 3196 whereby petitioner judgment debtor's objections regarding the executability of the decree were rejected.

(2.) THE facts leading to the present petition, stated succinctly, are as follows:

(3.) WHEN the plaintiff non-petitioner No. 1 filed application for execution of the above decree, the same was resisted by the petitioner on the ground that the decree A passed by the learned Civil Judge was a nullity in the eye of law inasmuch as the learned Civil Judge did not find the ground mentioned in Sec. 13(1)(e) of the Act fulfilled by the plaintiff. The provisions of Sec. 13 of the Act interdict the Court from passing any decree or making any order in favour of a landlord whether in execution of decree or otherwise, evicting the tenant unless one of the grounds mentioned in Section 13 is proved in favour of the landlord and against the tenant. In the instant, case a perusal of the judgment of the learned Civil Judge eloquently shows that the plaintiff did not allege that defendant No. 1 sublet the suit shop to defendant No.2 with his consent. Though the averment of subletting was made. The relevant issues framed by the Court is issue No.3, but it does not reflect the mandate of Clause (e) of Sec. 13 of he Act He submitted that defendant No. 1 non-petitioner No. 2 has sublet suit shop to him. Only subletting is not a ground for eviction. According to Clause (e), the subletting should be without the consent of the landlord. In the present case, the landlord did not make any specific averment that defendant No. 1 sublet the shop to defendant No. 2 without his consent. Only a general averment of subletting have been made and issues has, also been framed on the same ground. The learned Civil Judge has therefore, not recorded finding which can correspond to Clause (e) of Sec. 13(1) of the Act. He has relied on Sunder Das v. Ram Prakash, AIR 177 SC 1201 : 1977(2) RCR 143(SC), Roshanlal v. Madanlal, 1976 RCR 112 (SC) : (1975) 2 SCC 785: AIR 1975 SC 2130, and Siba Pada Rai v. Sudhangsu Kumar Singh, AIR 1980 Cal 90 and Nand Bala Daisy v. B.B. Mukherjee, 1987(1) Ren CR 547 (Cal).