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2003 DIGILAW 1613 (RAJ)

Prithvi Singh v. State of Rajasthan

2003-12-03

N.P.GUPTA

body2003
JUDGMENT 1. - This revision has been filed by the decree holder against the order of the learned Executing Court dated 1.4.2000 dismissing the execution in full satisfaction. 2. It is contended by the learned counsel for the petitioner that in passing the impugned order, the learned Executing Court has adopted a wholly wrong approach of law, and despite the decree being not fully satisfied the execution has been dismissed, and thus the learned Executive Court has failed to exercise the jurisdiction vested in him by law, and the impugned order is liable to be set aside. 3. The precise contention raised is that since it is not in dispute that the suit for eviction was filed claiming arrears of rent @ Rs.2200/- to be due w.e.f. 1.1.1989, and in that suit vide order dated 25.1.1992 the learned trial court had made provisional determination of rent under Section 13(3) of the Rajasthan Premises (Control of Rent & Eviction) Act 1950 for the period 1.1.1989 to 31.12.1991 and determined the amount of rent @ Rs.1520/- to be Rs.54420/-, and awarded interested thereon to the extent of Rs.9850/-. This amount was deposited by the tenant on 2.5.1992. According to the learned counsel for the petitioner, it is also not in dispute that the learned trial court decreed the suit for arrears of rent @ Rs.1520/-, against which decree the plaintiff filed appeal before the learned Appellate Court where the decree was modified, and the plaintiff was held entitled to the rent @ Rs.2200/- per month. In that view of the matter, learned counsel for the petitioner submits that in execution the decree-holder was entitled to recover the rent @ Rs.2200/- from 1.1.1989 to 29.2.1992, and of course the plaintiff was not entitled to be awarded any further interest on this enhanced rate of rent for the period 1.1.1989 to 31.12.1991, but then the learned Executing Court has calculated the total amount of rent from 1.1.1989 till the date of eviction @ Rs.2200/- per month, from out of the said amount, after adjusting the amounts paid by the defendant, including the entire amount paid pursuant to the rent determined under Section 13(3) had held the decree to be satisfied, by proceeding to consider, as if the petitioner is claiming the amount of Rs.9850/-, awarded by way of interest, to be still outstanding. According to the learned counsel, therefore, the Executing Court was required to calculate the amount of rent @ Rs.2200/- as above, and therein could adjust Rs.54,420/-, which was the amount of rent determined by the learned trial court vide order dated. 25.1.1992, and thereafter the decree was required to be executed. 4. Learned counsel for the respondent, on the other hand, supported the impugned order. 5. I have considered the submissions and find that the impugned order cannot sustained. A look at the impugned order shows that the learned Executing Court has proceeded on the basis, that the final decree held the plaintiff to be entitled to the rent @ Rs.2200/- per month, and no interest was awarded therein, and since the Executing Court cannot go behind the decree, so as to execute the decree for the purpose of recovery of interest awarded vide order dated. 25.1.1992 under Section 13(3) of the Act, and also because the order under Section 13(3) is only interlocutory order, which finally merges in the decree, and therefore, since in the decree the plaintiff has not been held entitled to any interest, the amount paid by the defendant, pursuant to the order dated 25.1.1992, is required to be accounted for, in the amounts, which the plaintiff is entitled, pursuant to the final decree. Suffice it to say, that admittedly no order in terms of Section 13(7) has been passed by any of the Courts below, being the learned trial court, or the Appellate Court, purporting to settle the dispute, as to the amount of rent payable by the tenant, or about the interest. In other words, whatever order of interest had been passed under Section 13(3) by the learned trial court on 25.1.1992 had not been interfered with, or modified; purportedly in exercise of the power under Section 13(7) at the time of finally deciding the suit. 6. In other words, whatever order of interest had been passed under Section 13(3) by the learned trial court on 25.1.1992 had not been interfered with, or modified; purportedly in exercise of the power under Section 13(7) at the time of finally deciding the suit. 6. On an overall reading of the various sub-sections of Section 13, in my view, it does make it clear that the provisions of Section 13(3) are in the nature of providing a moratorium to the tenant against the liability of eviction in case of his having committed default, and the provisions of Section 13(3) and 13(4) do stipulate certain conditions to be fulfilled by the tenant for the purpose of entitling it not to be evicted only on the ground of default by virtue of the provisions of Sub-section (6), and it is in his sequence, that one of the conditions is, that the amount of arrears of rent is to be determined together with interest on such amount calculated @ 6% per annum, from the date when such amount was payable up to the date of determination. Once that determination is made, thereafter it is not necessary for the Court while passing a final decree, to reiterate the plaintiff's entitlement to that interest. Obviously, since the defendant had already paid the amount as determined vide order dated 25.1.1992, on 2.5.1992, the matter for that purpose came to an end at that stage, and the only controversy survived was about rate of rent, i.e. as to whether it should be Rs.1520/-, or Rs.2200/-, which was required to be determined in accordance with the provisions of Section 13(7), and since the learned trial court decreed the suit holding the plaintiff to be entitled to rent @ Rs.1520/-, and the learned Appellate Court modified that decree, holding the plaintiff entitled to rent @ Rs.2200/- per month, that cannot be said to mean, that the interest determined on the arrears of rent calculated @ Rs.1520/- per month, which the defendant was required to pay by virtue of Section 13(3), and paid by the defendant, pursuant to the order passed under Section 13(3), should be taken to be the amount paid by the defendant against the monthly rent. 7. Accordingly, the revision petition is allowed. 7. Accordingly, the revision petition is allowed. The impugned order is set aside, and the learned Executing Court is directed to execute the decree keeping in view the above principles and observations.Revision Allowed - Decree Directed to be Executed. *******