SHAIRSUDDIN Vs. JHANWARILAL

JUDGEMENT

(1.) THIS revision is directed against the order dated 2. 2. 88 passed by Munsif Bikaner whereby the petitioner's objection that decree is nullity on the ground that the suit for eviction did not lie u/sec. 14 (3) of the Rajasthan premises Control (Rent & Eviction) Act, 1950 was dismissed.

(2.) THESE facts are not in dispute that the decree-holder filed a suit for eviction of shop on 1-12-81. That suit was decreed by the trial court and the decree was maintained up to the High Court in second appeal and the plaintiff decree holder submitted an execution application No. 47/84 for issuance of warrant of possession. In execution of the decree, the judgment debtor petitioner submitted an objection that under sub sec. 3 of Sec. 14 there is a provision beginning with the non abstante clause to the effect that no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant on the ground set forth in clause (h) of sub-sec. (1) of sec. 13 before the expiry of five years from the date the premises were let out to the tenant. According to the judgment debtor the premises were let out to him on 22. 12. 76 as alleged in the plaint and five years had not expired so that suit for eviction was not maintainable and did not lie u/sec. 14 (3 ). The trial court considered the objection and stated that the decree had become final. No such objection as earlier raised and decree has not become nullity so this objection is not open to be raised in the execution by the judgment debtor. As the decree is not nullity, execution court cannot go behind the decree. Dissatisfied with the order of the learned Munsif, this revision petition has been filed.

(3.) FURTHER reliance has been placed by Shri Samdariya on a decision of the Supreme Court in Haji SK. Subhan V. Madhorao (2), This authority has no application to the present case. In that case after hearing all the arguments and before delivery of judgment by the High Court, the Madhya Pradesh Abolition of Proprietary (Estates, Mahals, Alienated Lands) Act, 1950 came into force whereby all proprietary rights vested in the State. It was held that an ignorance of the above legislation the decree was passed so that decree became in excuable as proprietary right vested in the state and as aconsequence of which the proprietor's right under the decree to obtain possession, also vested in the State, even though the state got right to the possession of the land under other provisions of the act as well. Thus this authority has no application to the present case.