NAVNEET KUMAR Vs. MAHESH CHAND GUPTA AND OTHERS

JUDGEMENT

(1.) The appellant decree-holder Navneet Kumar has filed this appeal against the judgment dated 29.3.2006 passed by learned Single Judge in the writ petition filed by the respondent (objector) No. 1 Mahesh Chandra Gupta. The aforesaid Mahesh Chand Gupta challenged the order dated 4.8.2003 passed by the Executing Court, namely Additional District Judge, (Senior Division) No. 3, Jaipur City, Jaipur in Execution Application filed by the appellant herein. By that order, the learned Executing Court rejected the application filed by the respondent No. 1 filed under Order 21 Rule 97. That application was filed by the respondent No. 1 in the proceedings initiated at the instance of the appellant seeking execution of the judgment and decree dated 29.1.2005 passed by the trial Court decreeing the suit for eviction as well as recovery of arrears of rent of Rs. 36,000/- and with a further direction to pay a sum of Rs. 1,000/- per month as mense profit till recovery of the possession. The decree was passed against respondent No. 3 Murari Lal who was a defendant in the suit. The respondent No. 1 filed his objections in the execution proceedings' inter alia asserting therein that the respondent No. 3 Murari Lal was in possession of the disputed property for a long time and that he had taken the same on rent from Murari Lal for payment of Rs. 1,500/- per month with effect from 1.9.1999 and was residing therein as his tenant since then. It was contended that the plaintiff (appellant herein) filed the civil suit without impleading him as party thereto and had obtained ex-parte decree behind his back. He learnt about the same only when the Court Nazir came to the said premises and required his wife to vacate the same. It was contended that the plaintiff was fully aware of the fact that he was in possession of the suit premises and yet he did not implead him (objector) as a party to the suit. In fact, the disputed property was owned by Smt. Shanti Devi who bequeathed the same by execution of will to Murari Lal on 9.6.1999. Murari Lal was therefore in possession of the said property as owner and had let out the same to the objector during lifetime of Smt. Shanti Devi. It was contended that eviction of objector without providing him opportunity of hearing would affect his legal rights and that the defendant Murari Lal was in possession of the disputed property as owner and not as a tenant.

(2.) The respondent No. 1 thereafter filed another application on 15.7.03 with the prayer that in view of his objection raised in the application under Order 21 Rule 97 C.P.C., he should be permitted to lead evidence in support of his application. The learned Executing Court however rejected the said application by its order dated 4.8.2003, which was impugned in the writ petition and the learned Single Judge vide judgment dated 29.3.2006 allowed the writ petition and directed that in view of provisions of Order 21 Rule 103 C.P.C., the Executing Court shall afford opportunity to the parties to lead evidence and decide the application under Order 21 Rule 97 CPC within a period of six months from the date of submissions of the certified copy of that order. It was further directed that the learned Executing Court shall as a first step determine the amount of rent which the objector was otherwise liable to pay to respondent No. 3 Murari Lal and directed for depositing the rent with effect from the date of filing of application under Order 21 Rule 97 in accordance with the order of such determination. We have heard Shri M.M. Ranjan, the learned Counsel for the appellant and Shri A.K. Bajpai, the learned Counsel for respondent No. 1 (objector).

(3.) Shri M.M. Ranjan, the learned Counsel for the appellant argued that the order passed by the learned Single Judge permitting the parties to lead evidence on the application filed by the respondent No. 1 under Order 21 Rule 97 was unsustainable in law because respondent No. 1 Mahesh Chand Gupta was claiming himself to be a tenant of Murari Lal and a decree of eviction has already been passed against said Murari Lal, as such he was bound by the decree. Since he was claiming through Murari Lal, he was equally bound by the decree passed against him. The disputed property was owned and possessed by Smt. Shanti Devi who was a child-widow and Murari Lal was her tenant. Smt. Shanti Devi had executed a registered will in favour of the appellant on 26.12.1998. She expired on 17.9.1999. The appellant thereafter filed a suit for eviction as well as arrears of rent against Murari Lal which was decreed by the learned trial Court vide its judgment dated 29.1.2003. The said Murari Lal filed a suit for injunction against Smt. Shanti Devi claiming that she was his wife. This suit was also dismissed by the Court concerned by judgment and decree dated 11.1.1996. Shri M.M. Ranjan therefore argued that Murari Lal being tenant of Smt. Shanti Devi, the decree of ejectment against him having attained finality, the respondent No. 1, who claims to be his tenant, can at the most be treated as his sub-tenant and has no independent right of his own to raise any objection about the execution of decree. He being the sub-tenant of Murari Lal, is legally bound by the judgment and decree passed against Murari Lal who was main tenant. Shri M.M. Ranjan, the learned Counsel for the appellant cited the judgment of Hon'ble Supreme Court in Suresh Chand Jain v. IIIrd Addl. District Judge, Mathura, 2001 10 SCC 508 and argued that the learned Executing Court rejected the application of the respondent No. 1 by relying on the said judgment, the learned Single Judge even then did not notice the said judgment while reversing the order of the Executing Court. Shri M.M. Ranjan also relied on the judgment of Hon'ble Supreme Court in Rupchand Gupta v. Raghuvanshi (Private) Ltd. and Anr., 1964 7 SCR 760 and Silverline Forum Pvt. Ltd. v. Rajiv Trust and Anr., 1998 2 SCR 587 and Balavant N. Viswamitra and Ors. v. Yadav Sadashiv Mule deceased by L.Rs. and Ors., 2004 AIR(SC) 4377. He therefore argued that execution of a decree validly passed cannot be allowed to be frustrated by entertaining frivolous and unfounded objections. There was therefore no justification for permitting the respondent No. 1 to lead evidence which would eventually delay execution of the decree.