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Gauhati High Court · body

1994 DIGILAW 28 (GAU)

Sardar Kundan Singh v. Al-Haz-Kaushar Alam

1994-02-16

S.N.PHUKAN

body1994
This petition has been filed under sections 115 and 151 of the Civil Proce­dure Code read with Article 227 of the Constitution of India by the judgment-debtors in respect of a petition filed under section 47, Civil Procedure Code in Title Execution Case No. 2 of 1992 before the learned Assistant District Judge, Dibrugarh. 2. The decree-holder filed a title suit for ejectment of the present petitio­ners on the ground of bonafide requirement. The suit, namely, Title Suit No. 17 of 1992 was decreed by the learned trial Court, that is, the Assistant District Judge, Dibrugarh on 8.1.92. The first appeal was also dismissed and thereafter the judgment-debtors approached this Court by filing a revision petition which was registered as Civil Revision No. 323 of 1992. The revision petition was also dismissed and the Apex Court was approached by filing a Special Leave to Appeal petition registered as No. 16308 of 1993 and this petition was also dismissed on 29.10.93. 3. The decree was put into execution and in the execution proceeding a petition was filed under section 47, Civil Procedure Code which was dismissed by the impugned order dated 7.1.94. 4. This petition was moved by Shn C. Baruah, learned .counsel for the petitioners and Mr. AR Baithakur also appeared for the decree-holder. At the stage of motion it was agreed to at the Bar that the matter can be disposed of at that stage. Therefore, the learned counsel were heard at length. 5. Section 47, Civil Procedure Code, inter-alia, provides that all questions arising between the parties to the suit in which the decree was passed, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. Mr. Baruab, learned counsel for the judgment debtors/petitioners has urged that the present decree stands satisfied or discharged inasmuch as it has come to the knowledge of the judgment-debtors of subsequent events, namely, the decree-holder has entered into an agreement with another person for letting out the suit premises though the decree was obtained for bonafide requirement of the judgment-debtors. It has also been urged by Mr. Baruah that subsequent to the dismissal of the petition by the Apex Court it came to the knowledge of the judgment-debtors that the decree holder has gone an alternative accommodation for residential purposes. It has also been urged by Mr. Baruah that subsequent to the dismissal of the petition by the Apex Court it came to the knowledge of the judgment-debtors that the decree holder has gone an alternative accommodation for residential purposes. Another point that has been urged by Mr. Baruah is that the area where the suit premises is located is a commercial area and it was also used for commercial purpose, namely, hotel by the judgment-debtors and therefore, no decree can be passed under the relevant rent law, namely, the Assam Urban Areas Rent Control Act, 1972. 6. In support of his contention the learned counsel has drawn the attent­ion of this Court to a decision of the Apex Court in Bhavan Vaja ts. HK Mansang, (1973) 2 SCC 40 . The Apex Court held that though the executing Court cannot go behind the decree under execution but it does not mean that it has no duty to find out the true effect of that decree. It was further held that for construing a decree in appropriate cases the executing Court has to take into consideration the pleadings as well as the proceedings leading up to the decree in order to find out the meaning of the words employed in a decree. According to their Lordships if the executing Court fails to perform the above duty, it would amount to failure of exercising jurisdiction vested in it. In other words, a revision petition is maintainable. 7. A reference has also been made by Mr. Baruah to a decision of this Court in Chandau Mail vs. Abdul Gani, AIR 1976 Gauhati 54. The Court considered the expression "relating to the execution... of the decree" in section 47, Civil Procedure Code and held that this expression covers the question of execute ability or non-excitability of a decree. 8. Mr. Baruah has also placed reliance in a decision of Orissa High Court in Radhi Dei vs. Lalit Bihari Mobaoty, AIR 1991 Orissa 36. The learned Single Judge held that ordinarily the executing Court is not entitled to go behind the decree and is not entitled to consider subsequent events to deny the decree-holder the right to execute the decree. Mr. Baruah has also placed reliance in a decision of Orissa High Court in Radhi Dei vs. Lalit Bihari Mobaoty, AIR 1991 Orissa 36. The learned Single Judge held that ordinarily the executing Court is not entitled to go behind the decree and is not entitled to consider subsequent events to deny the decree-holder the right to execute the decree. But there are certain well recognised exceptions to this rule, one of them is that when the decree is a nullity or the decree-holder has lost the right to execute the decree on account of a subsequent change -in law or some subsequent development then the executing Court can take notice of the change in the situation and can refuse to execute the decree on that basis. 9. Mr. Barthakur, learned counsel for the decree-holder opposite party has placed before this Court the Special Leave petition filed before the Apex Court and has urged that all the points urged before the executing Court were taken up before the Apex Court, but the Apex Court refused to interfere with the decree affirmed by this Court. Therefore, according to the learned counsel, the points taken up bet ore the Apex Court cannot be re-agitated before the executing Court. 10. There is no doubt that if a decree is a nullity in view of subsequent events or change of law, the decree cannot be executed and it can be pleaded anywhere any time Similarly, if the decree has become non-executable because of subsequent events, the executing Court can definitely take note of subsequent events and orders accordingly. 11. In this particular case, as stated above, the decree was only a decree for ejectment of the tenant. The first contention of Mr. Baruah is that the decree-holder has entered into an agreement for letting out the suit premises again has no force inasmuch as for this contingency the legislature has made adequate provision in section 5 of the Assam Urban Areas Rent Control Act, 1972. Sub-section (3) of section 5, inter-alia, provides that if a landlord reco­vers possession of a house for bonafide requirement etc. Sub-section (3) of section 5, inter-alia, provides that if a landlord reco­vers possession of a house for bonafide requirement etc. and the house is not occupied by the landlord within fifteen days of the vacation of the house or the house having been so occupied is within six months of the said date re-let to or allowed to be possessed toy any other person, the Court may, on the application of the evicted tenaut made within seven months of his vacating the house, direct the landlord to put the evicted tenant in possession of the house within such period as may be fixed by the Court and also to pay com­pensation. Therefore, the first contention of Mr. fiaruah is liable to be rejected, which I hereby do. 12. The second contention of Mr. Baruah that the landlord decree-holder has got an alternative accommodation and was not known to the tenant judgment-debtors even at the time of approaching the Apex Court is not at all acceptable inasmuch as if this plea is accepted, it would amount to re-opening the entire issue afresh and in my opinion this cannot be done in a petition under section 47, Civil Procedure Code. That apart, this fact would not amount to the decree being nullity or non-executable. Therefore, the contention of Mr. Baruah is rejected. I may mention here that on perusal of the Special Leave Petition before the Apex Court, I find that these points were taken up before the Apex Court but the petition was rejected. 13. The next point urged by. Mr. Baruah is that the suit premises being situated in a commercial area for commercial purpose, no decree for eviction can be passed for bonafide requirement of the landlord for his own use and occupation. But Mr. Barthakur has rightly pointed out by drawing the atten­tion of this Court to the pleadings of the main original suit that this point w«s sever taken up. I accept the submission of Mr. Barthakur and I hold that such a plea cannot be taken up at the stage of execution. That apart, under the rent law, namely, the Assam Urban Areas Rent Control Act, 1972 there is no bar of passing of a decree for eviction on this ground. 14. Situated thus, I do not find any force in the present petition and accordingly it is rejected. The stay order stands vacated. That apart, under the rent law, namely, the Assam Urban Areas Rent Control Act, 1972 there is no bar of passing of a decree for eviction on this ground. 14. Situated thus, I do not find any force in the present petition and accordingly it is rejected. The stay order stands vacated. Parties to bear their own costs.