INDRA Vs. NARAYAN CHAND

JUDGEMENT

(1.) This is a revisional application under Section 115, C.P.C. by the three judgment-debtors directed against the order of the Munsif City, Jodhpur dated January 1, 1978 by which he dismissed their objections dated October 14, 1977 praying that execution cannot proceed against them and that the execution may be dismissed.

(2.) The short facts relevant for the disposal of this revision are these : The plaintiff-decree-holder instituted a suit for arrears of rent and ejectment against the defendant Shantilal (now deceased) in respect of the shop No. 2 situate in Ramnath Mehra Bhawan, Jalorigate, Jodhpur. An ex parte decree was passed by the learned Munsif, Jodhpur on March 28, 1973 for ejectment, arrears of rent and damages for use and occupation @ Rs. 75/- per mensum. Execution was levied by the decree-holder against Shantilal judgment-debtor on October 16, 1973. During the pendency of the execution application, since Shantilal, original judgment-debtor died on April 14, 1976, notices were issued to the legal representatives of Shantilal under Order 21, Rule 2, C.P.C. Shantilal judgment-debtor is survived by his widow, Indra Dixit (petitioner No. 1); his son Ajay Dixit (petitioner No. 2) and daughter Kumari Abha, (petitioner No. 3). Besides these, there are two minor daughter Kumari Vibha and Kumari Nidhi who are pro form a non-petitioners No. 2 and 3 whose Court guardian is Smt. Indu B. Rathi, Advocate, High Court, Jodhpur. In response to the notice Under Order 21, Rule 22 C.P.C., the objections were filed stating that an agreement was arrived at between the decree-holder-non-petitioner No. 1 and deceased Shantilal (original judgment-debtor) during his life time according to which, the decree-holder had agreed that he will not disposes the judgment-debtor from the shop in dispute and will relinquish his right to execute the decree if the judgment-debtor pays to the decree-holder rent in time and further pays the entire dues after adding interest and costs. It has also been stated that Shantilal agreed to the offer made by the decree- holder and he paid the entire rent, costs and interest to the decree-holder in time. The case of the judgment-debtors further is that rent was paid to the decree-holder upto August, 1977 and that the decree-holder did not dispossess the judgment-debtors from the shop in dispute in pursuance of the agreement. It has been mentioned in the objections that after the death of Shantilal, rent has been accepted by the decree-holders from his son and he has also accepted him as his tenant. Thereafter on July 27, 1976, Rs. 225/- was sent by money-order which were accepted on behalf of the decree-holder. Subsequent to that, on November 2, 1976, a further sum of Rs. 225/- was sent to the decree-holder which was received by him on November 4, 1976. In the premises aforesaid, it was contented by the judgment-debtors in their objections that the decree-holder has relinquished his right, and so the execution cannot proceed further. In para 5 of the objection-petition, it was pleaded that a new tenancy had come into existence between the decree-holder and the judgment debtor and, therefore, on account of novation of contract, the execution is not maintainable. Certain other objections were taken but I do not consider them necessary to mention for the present purpose. The decree-holder resisted the objections by filing a reply dated November 4, 1977. The decree-holder denied the agreement between him and the original judgment-debtor Shantilal. The various payments alleged to have been made were admitted by the decree-holder. His principal pleas are that there was neither agreement for novation of contract and that the objections of the judgment-debtor are not barred by time as the pleas taken by the judgments-debtors amount to adjustment of the decree and since the judgment-debtors did not get it certified within thirty days as required by Article 125 of the Limitation Act, 1963, no effect can be given to these pleas. He also contended that the objections taken by the judgment-debtors are barred by the principle of res judicata. The facts stated by the petitioners were not investigated by the execution Court. It held that since the adjustment was not got certified under the provisions of Order 21, Rule 2, C.P.C., it cannot be recognised. According to it, the adjustment should have been got certified within thirty days from the date of adjustment according to Article 125 of the Limitation Act. Since this was not done within the prescribed time, it dismissed the objection of the judgment-debtor so far as to relates to the "adjustment of the decree". Being aggrieved by the order dated January 10, 1978, the judgment-debtors-petitioners have come up in revision before this Court.

(3.) On August 14, 1978, I ordered that show cause notices be issued to the non-petitioners as to why the revision petition be not admitted. On September 11, 1978, Mr. S.S. Purohit, learned counsel for the petitioner, stated that non-petitioner Nos. 2 and 3 are the minor daughters of the judgment-debtor Shantilal and so, for the purpose of admission of the revision application, it is not necessary to get them served. On that day, Mr. G.R. Singhvi put in appearance for non-petitioners No. 1. On September 14, 1978, learned counsel for the petitioner submitted the copies of the objections as well as of the reply submitted by the decree-holder. Learned counsel for the decree-holder did not dispute the correctness of these copies. Learned counsel for the parties also do not dispute the facts stated herein-above.