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2001 DIGILAW 136 (HP)

RAJ KUMAR v. LEELA WATI

2001-07-06

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood, J.—This revision petition is directed against the orders passed by learned Rent Controller, (Senior Sub Judge), Una Distt. Una, dated November 28, 1998. 2. In order to appreciate, controversy facts may be noticed: Leela Wati decree-holder respondent herein filed an Eviction Petition under Section 14 of the H.P. Urban Rent Control Act, 1987 against the petitioner/judgment debtor Raj Kumar on the grounds of arrears of rent. The parties compromised and an order in terms of the compromise was passed, which reads as under: "16.9.1996 Present : Sh. Sunil Verma, Advocate, for the petitioner. Respondent with Sh. CM. Sharma, Advocate. Reconciliation is tried and effected and reduced into writing. According to the terms of the reconciliation, the respondent would pay the balance amount of Rs. 7,000 (including rent upto 31.8.1996) within a period of 7 months in 7 monthly instalments of Rs. 1,000 each. The first such instalment shall be payable by 7th of October and the subsequent instalments would be payable by 7th of every month. In default of payment of any instalment the respondent shall be liable to be ejected. The file after completion be consigned to record room. Sd/- Rent Controller, Una." 3. A bare reading of the order of the learned Rent Controller shows that the arrears of rent were to be paid in seven monthly instalments of Rs. 1,000 each. The first instalment was payable by 7th October and similarly subsequent instalments were to be paid by 7th day of each month. In default of payment of any of the instalment, respondent was liable to be evicted. 4. It is admitted position that the first instalment of Rs. 1,000 was paid on October 7, 1996. The subsequent instalment was not paid on or before November 7,1996, as stipulated in the order of learned Rent Controller. According to the decree-holder, respondent defaulted in the payment of arrears of rent and was liable to be evicted. Decree-holder filed an execution petition before the learned Rent Controller. 5. Respondent filed objections alleging that he had paid the entire amount of arrears of rent of Rs. 7,000 and the execution petition stands fully satisfied. It was admitted by the judgment debtor in His reply that one instalment i.e. for the month of November, 1996 was paid in the account of the decree-holder in the Bank on 7.11.1996. 5. Respondent filed objections alleging that he had paid the entire amount of arrears of rent of Rs. 7,000 and the execution petition stands fully satisfied. It was admitted by the judgment debtor in His reply that one instalment i.e. for the month of November, 1996 was paid in the account of the decree-holder in the Bank on 7.11.1996. However, in the same paragraph he turns around and says that instalment of Rs. 1,000 was paid in the account of decree-holder on 14.11.1996 (wrongly typed as 14.11.1997). 6. Case of the judgment debtor was that judgment debtor wanted to pay instalment of Rs. 1,000, payable for the month of November, 1996, and went to the house of decree-holder but husband of the decree-holder put him off with a lame excuse telling him that "he would receive the instalment in the Bank" and, therefore, "on the next day husband of the executant was not available and ultimately the judgment debtor/respondent deposited the instalment of Rs. 1,000 in the bank account of the excutent on 14.11.1996." 7. Learned Executing Court settled the following issues: 1. Whether the respondent has defaulted in the payment of rent and is liable to be evicted, as alleged? OPA 2. Relief. 8. After giving opportunities to the parties to lead evidence, the Executing Court concluded that there has been default in the payment of arrears of rent and accordingly dismissed the objections of the judgment debtor. Warrants of possession were directed to be issued for eviction of the judgment debtor. 9. On December 14, 1998, when this petition came up for hearing before this court, an interim stay was granted on the condition that the arrears, if any will be paid within four weeks and current rent be paid to the landlord without default according to due dates and in case of refusal to receive by her, the same may be remitted to the credit of the proceedings in the court below. 10. Mr. Naresh Thakur, learned Counsel for the respondent urges that the petitioner-judgment debtor having not complied with the orders of this court dated December 14, 1998 is not entitled to any relief from this court and equities are not in his favour. 11. Mr. 10. Mr. Naresh Thakur, learned Counsel for the respondent urges that the petitioner-judgment debtor having not complied with the orders of this court dated December 14, 1998 is not entitled to any relief from this court and equities are not in his favour. 11. Mr. Ajay Sharma, learned Counsel for the petitioner-judgment debtor urges that the order recorded by learned Rent Controller on the compromise between the parties is beyond the statement made by the judgment debtor in the court and, therefore, is not executable. The contention to say least is misplaced and cannot be accepted. The Executing Court is bound to execute the decree as it is and cannot go behind the decree unless the decree under execution is a nullity. The decree would be nullity if a court passing such decree lacks inherent jurisdiction. A decree which has been passed erroneously or even on the basis of mis-reading of evidence or under the wrong impression of law cannot be said to be nullity. Reference may be made to Him Lai Moolchand Doshi v. Barot Raman Lal Ranchhoddas (dead) by L.Rs. (AIR 1993 SC 1449). In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others, (AIR 1970 SC 1475) the Apex Court held that court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. In my view, unless such decree is set aside by an appropriate proceeding in appeal or revision. A decree, even if it is erroneous, is still binding between the parties. 12. The second contention of learned Counsel for the petitioner is that the decree-holder having accepted the subsequent instalment is estopped from saying that the second instalment was not paid in terms of the decree. The contention again is noticed to be rejected. The execution petition was filed by the decree holder on November 8, 1996, the very next day of the default of the payment of second instalment. There is no question of any estoppel or waiver in the present case. 13. The contention again is noticed to be rejected. The execution petition was filed by the decree holder on November 8, 1996, the very next day of the default of the payment of second instalment. There is no question of any estoppel or waiver in the present case. 13. Lastly, learned Counsel for the judgment debtor contends that the judgment debtor had gone to the house of decree holder to pay the second instalment on due date i.e. November 7, 1996 but he was put off by the decree-holder as her husband was not available in the house and when he went back in the evening then he was told to come after two days and when he again went to the house of the decree-holder he was told that the decree holder will not accept the money and it may be deposited in her account and he, therefore, accordingly deposited the amount of second instalment in the bank account of the decree-holder. 14. It is true that in his statement judgment debtor stated that he went in the month of November to the house of decree-holder along with one Vijay Kumar but he was told by Leela Wati/decree-holder to come in the evening but in the evening he was again put off and then he was asked to come after two days. On the third day when he went to the house of decree-holder, Leela Wati told him that she will not take money and "it will be deposited in her account". It is significant to note that the judgment debtor did not give the date on which he went to the house of the decree-holder in November, 1996. In his objections, the stand taken by the judgment debtor is that he was put off by the husband of the decree-holder on lame excuses that he will receive the instalment in the bank. On the next day, husband of the decree-holder was not available and, therefore, he deposited the instalment on 14.11.1996. If it be true then instalment would have been deposited by the judgment debtor in the bank on 4th day i.e. 11.11.1996 whereas it was deposited admittedly by the judgment debtor on 14.11.1996. Statement of the judgment debtor does not inspire confidence, as noticed by the learned Executing Court. 1 15. If it be true then instalment would have been deposited by the judgment debtor in the bank on 4th day i.e. 11.11.1996 whereas it was deposited admittedly by the judgment debtor on 14.11.1996. Statement of the judgment debtor does not inspire confidence, as noticed by the learned Executing Court. 1 15. This apart it is evidence of Ram Charan Dass, husband of th£ decree holder that notice, copy of which is Ex. PW-l/A dated 10.10.199&, was sent to the judgment debtor to pay the amount of instalment in the bank account. Perusal of the notice, sent by registered post oft the address of the judgment debtor, shows that the judgment debtor was asked to deposit the instalments in terms of the orders of the learned Rent Controller in the saving bank account No. 12032 of decree-holder in the Central Bank of India Una Branch. Notwithstanding the denial of judgment debtor that he did not receive this notice, presumption is that such notice was received by him. Such presumption has not been displaced. 16. The findings of the learned Executing Court cannot be said to be perverse or unsupportable by evidence on record. Even if it is possible to say that the conclusion arrived at by the trial Court is erroneous, this court will not substitute its own opinion under the revisional jurisdiction. 17. Learned Counsel for the decree-holder refers to The Managing Director (MIG) Hindustan Aeronautics Ltd. v. A jit Prasad Tarwaxj, AIR 1973 SC 76; The Municipal Corporation of Delhi v. Suresh Chandra Jaipuria and another, AIR 1976 SC 2621, and submits that jurisdiction of the High Court to interfere with the orders of the trial Court under Section 115 of the Code of Civil Procedure is limited and it is not open to this court to interfere even if the orders are erroneous. 18. Learned Judges in The Managing Director (MIG) Hindustan Aeronautics case (supra) observed : "In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. 18. Learned Judges in The Managing Director (MIG) Hindustan Aeronautics case (supra) observed : "In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code." 19. Learned Counsel for the judgment debtor/petitioner by referring to Gurdev Singh v. Gulaboo and others, 2000 (3) Shimla Law Cases 285, submits that the statement of the General Power of Attorney of the decree-holder cannot be taken into consideration, as the decree-holder did not appear in the witness box in support of her case. It is true that the decree-holder did not appear herself as her own witness instead her husband appeared as her attorney. It is also true that he cannot be treated as having appeared in the capacity as decree-holder but at the same time his evidence cannot be discarded as a witness in his personal capacity. 20. This apart, notice when exhibited was not objected to by the judgment debtor and, therefore> in this revision petition it is not open to the judgment debtor to say that the notice has not been proved in accordance with law before the Executing Court. 21. There is no merit in this revision petition and the same is dismissed with costs which are quantified at Rs, 2,000. Revision dismissed.