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1998 DIGILAW 10 (RAJ)

Yashin Khan v. Rajasthan Muslim Waqf Board

1998-01-05

SHIV KUMAR SHARMA

body1998
Honble SHARMA, J.–lnstant revision impugns the order dt. 31.3.1997 of the learned Additional Civil Judge (Junior Division) No.2 Jaipur City whereby the application u/O. 21, R.22 CPC of the judgment-debtor petitioner (for short the judgment debtor) was dismissed. (2). Suit for eviction in respect of suit property was decreed by the trial Court on 16.3.1981 in favour of the decree holder non- petitioner (for short the decree holder). The appeal of the judgment debtor was dismissed by the first appellate Court on 22.12.1981. Thereafter the judgment debtor preferred second appeal which was also dismissed on 4.5.1982. This Court granted nine months time to the judgment debtor on furnishing, undertaking to vacate suit premises in the interest of justice. The order of this Court was called in question by the judgment debtor before the Supreme Court by filing petition for special leave to appeal (Civil) No. 7531/1983. Their Lordships of the Supreme Court dismissed the special appeal leave petition vide order dt. 4.8.1986. (3). Instead of vacating the suit premises pursuance to the undertaking furni- shed by him seeking nine months time, the judgment debtor raised objections in the execution proceedings by filing an application u /0. 21, R. 22 CPC. In the application the judgment debtor averred that the decree holder Waqf Board through Mohd. Ibrahim entered into a fresh tenancy agreement in respect of the suit premises with effect of 1.1.1986, during the pendency of special leave petition before the Supreme Court. The rent of the suit premises was increased from Rs. 15 to Rs. 125/- per month. Increased rent was paid to the decree holder on 3.2.1986 through receipt No. 32 signed by the authorised representative of the Board Shri Mohd. Ibrahim. The rent thereafter was regularly paid and the judgment debtor had no cause to pursue the special leave petition and that lead dismissal of the said petition on 4.8.1986. It was also pleaded that the execution petition was barred by time and Mohd. Ibrahim had no authority to initiate execution proceedings. The application was supported by affidavit of Yashin. (4). The decree holder denied the averments by filing reply supported by affidavit of Mohd. Ibrahim. (5). Learned executing Court directed to cross examine Yashin and Mohd. Ibrahim u/O.19 CPC in order to testify the veracity of their respective affidavits. Ibrahim had no authority to initiate execution proceedings. The application was supported by affidavit of Yashin. (4). The decree holder denied the averments by filing reply supported by affidavit of Mohd. Ibrahim. (5). Learned executing Court directed to cross examine Yashin and Mohd. Ibrahim u/O.19 CPC in order to testify the veracity of their respective affidavits. On the basis of averments of the parties the executing Court framed as many as three issues and by an elaborate order dismissed the application of the judgment debtor. (6). I have given my anxious consideration to the rival contentions and care- fully perused the record. The special leave petition filed by the judgment debtor was dismissed on 4.8.1986 by their Lordships of the Supreme Court on merits in the presence of Shri P.H. Parekh and Sh. P.K. Manohar, learned counsel for the judgment debtor. Therefore this contention of judgment debtor that fresh tenancy was created by the decree holder on 1.1.1986 cannot be believed. Had it been so the judgment debtor would have brought this fact to the notice of the Honble Sup- reme Court. The execution petition was within limitation in view of undertaking furnished by the judgment debtor pursuant to the order dt. 4.5.1982 of this Court and Mohd. Ibrahim could have signed the execution petition on behalf of the Waqf Board. (7). I see no jurisdictional error in the impugned order and if it is allowed to stand it would not occasion failure of justice. (8). Consequently, the revision fails and is hereby dismissed with costs. Record of the case be sent forthwith. The parties are directed to appear before the executing Court on 19.1.1998. Interim order passed by this Court on 11.4.1997 stands vacated.