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2004 DIGILAW 731 (PNJ)

Ramesh Kumar v. Vijay Kumar

2004-07-20

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This petition filed under Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949 (for brevity `the Act) is an illustration of the proverb that the pains of the decree-holder start at the stage of execution. This is the third round of litigation initiated by the judgment debtor-petitioner. This time challenge is to the order dated 4.5.2004 passed by the Addl. Civil Judge (Sr. Division), Gurdaspur, dismissing the objections raised by the judgment debtor-petitioner under Order XXI Rule 97 of the Code of Civil Procedure, 1908 (for brevity `the Code). Earlier objections filed by him under Section 47 of the Code were dismissed on 3.4.2001 and that order was upheld by this Court. 2. Brief facts of the case are that the decree holder-respondents filed an ejectment petition against the judgment debtor-petitioner which was dismissed by the Rent Controller, Gurdaspur on 11.1.1995. However, on appeal, the Appellate Authority ordered ejectment of the judgment debtor-petitioner on 16.12.1997 on the ground that the judgment debtor-petitioner was the sub- tenant and was liable to be ejected on the ground of sub-letting. Civil Revision No. 832 of 1998 was filed in this Court by the judgment debtor- petitioner and the view taken by the Appellate Authority was upheld by this Court on 2.11.1999. I have perused the judgment dated 2.11.1999 passed by this Court. It shows that the petitioner had set up receipts (Exs.R.1 to R.3 therein) to establish that he was a tenant under Ms. Veena Nanda, the earlier landlord. These receipts were found to be forged. 3. The judgment dated 2.11.1999 passed by this Court was challenged before the Supreme Court and the Special Leave Petition was dismissed. 4. The decree-holder respondents filed execution against the judgment debtor- petitioner which was opposed by filing detailed objections under Section 47 of the Code. It was alleged that after the passing of the order of ejectment and upheld by this Court in CR. No. 832 of 1998 decided on 2.11.1999, one of the decree holders Ashok Kumar is alleged to have entered into a compromise with the judgment debtor-petitioner on 31.5.2000. A fresh rent note was alleged to have been executed by Ashok Kumar in favour of the judgment debtor-petitioner on 31.5.2000 enhancing the rate of rent from Rs. 27/- to Rs. 500/-. No. 832 of 1998 decided on 2.11.1999, one of the decree holders Ashok Kumar is alleged to have entered into a compromise with the judgment debtor-petitioner on 31.5.2000. A fresh rent note was alleged to have been executed by Ashok Kumar in favour of the judgment debtor-petitioner on 31.5.2000 enhancing the rate of rent from Rs. 27/- to Rs. 500/-. On 3.4.2001, the afore-mentioned objection petition was dismissed primarily on the ground that the provisions of Order XXI Rule 2(i) of the Code are mandatory in character. On facts the judgment debtor-petitioner had taken the stand that Ashok Kumar one of the decree-holder respondents has executed a rent note in his favour dated 31.5.2000 and had also issued a receipt of rent of Rs. 500/-. To prove both facts a photocopy of a deed writer register showing signature of Ashok Kumar and a receipt of rent duly signed by Ashok Kumar were produced. In para 5 of the order, the ld. executing Court noticed the stand of the decree-holder-respondent categorically denying execution of any rent note on 31.5.2000 or the rent receipt. The order passed by the executing Court was challenged before this Court in C.R. No. 2411 of 2001 which was also dismissed on 20.2.2000 upholding the order of the executing Court. Reliance was placed on two judgments of the Supreme Court in the cases of Badami Devi v. Sagar Sharma, 2000(1) CCC 1 and Sultana Begam v. Prem Chand Jain, 1997(2) RCR(Civil) 8 (SC) : 1997(1) SCC 373, for holding that an uncertified payment of money or adjustment in lieu of the decree which is not recorded by the Court under Order XXI Rule 2(i) of the Code cannot be recognised by the executing Court. The only enquiry which the executing Court could make is to find out whether the plea taken on its face value amounts to adjustment or satisfaction of the decree wholly or in part and whether such adjustment or satisfaction had effect of extinguishing the decree to that extent. As no certificate was obtained from the executing Court with regard to adjustment of the judgment and decree dated 16.12.1997 passed by the Appellate Authority as upheld by this court in CR. No. 832 of 1998 decided on 2.11.1999 the plea taken by the judgment-debtor-petitioner was rejected. 5. As no certificate was obtained from the executing Court with regard to adjustment of the judgment and decree dated 16.12.1997 passed by the Appellate Authority as upheld by this court in CR. No. 832 of 1998 decided on 2.11.1999 the plea taken by the judgment-debtor-petitioner was rejected. 5. The judgment debtor-petitioner challenged the order dated 20.2.2002 passed in C.R. No. 2411 of 2001 in the S.L.P. (C) No. 12828 of 2002 on 16.7.2002. The Supreme Court had issued notice for 1.8.2002. However, for the reasons best known to the judgment debtor-petitioner the SLP was withdrawn on 26.7.2002 and thereafter he filed objections under Order XXI Rule 97 of the Code. The judgment debtor-petitioner had attempted to reopen the whole issue seeking to establish the relationship of landlord and tenant between the decree-holder respondents and himself. For that purpose he made reference to various documents. He also raised objection with regard to two rent receipts dated 30.10.1986 and 5.1.1987 which were ignored by the Rent Controller on the ground that they were forged and also insufficiently stamped. The judgment debtor-petitioner claims that the deficiency was made up under Section 35 of the Indian Stamp Act. According to the judgment debtor-petitioner as a consequence those receipts were admissible under Section 36 of the Stamp Act. He also referred to the record of the Municipal Committee showing the payment of teh bazari alongwith the allegations of fraud alleged to have been committed by the decree-holder-respondents claiming that various issues with regard to establishing the relationship of landlord and tenant between the parties were required to be framed. The judgment debtor submitted before the executing Court that documents like Ex.R.5, R.6, R.10, R.12 and R.13 have been proved by him on record were improperly rejected by the Appellate Authority in its judgment dated 16.12.1997. The executing Court rejected the argument with regard to framing of various issues and observed as under : "... the matter in controversy on the basis of which the applicant has asked the Court to frame the issues has already been decided between the parties. There is no requirement of law to frame issues and reopen the case again and again. The executing Court cannot go behind the decree. It has also been decided in the ejectment application whether the applicant is direct tenant of Smt. Veena Nanda or not. There is no requirement of law to frame issues and reopen the case again and again. The executing Court cannot go behind the decree. It has also been decided in the ejectment application whether the applicant is direct tenant of Smt. Veena Nanda or not. So, there is no use to re-agitate the matter again and again whether the applicant is the tenant of the DH or not. It has already been held by the Appellate Authority that the applicant is in possession of the demised shop as a sub-tenant. The objections already filed by the applicant under Section 47 CPC has already been dismissed. The plea of the ld. counsel for the applicant/objector that the evidence is required to be produced and examined in the present objections cannot be accepted, because no point has been disclosed by the applicant on which the applicant wants to produce evidence. He has not placed any rent note or receipt on which the evidence is required to be summoned. As the applicant has failed to produce any document on record, then there is no use to frame the issues and to give an opportunity to the parties to produce evidence in support of their respective claims." 6. The executing Court further held that neither any document was placed on record showing the execution of the rent deed by Ashok Kumar in favour of the judgment debtor-petitioner nor any receipt in favour of the judgment debtor- petitioner was placed on record which might have been issued by Ashok Kumar showing that the rent was increased from Rs. 27/- to Rs. 500/-. This was the precise objection taken by the judgment debtor-petitioner when he filed objections under Section 47 of the Code as mentioned above which have already attained finality as it was held that any adjustment of decree which is not recorded by the Court under Order XXI Rule 2(i) of the Code cannot be recognised by the executing Court and that too within the prescribed period of limitation of 30 days. The executing Court, therefore, rejected he claim of the judgment debtor-petitioner by observing as under : "... The applicant has now filed the objection petition in question on the same grounds which were taken in his written statement filed in the ejectment petition as well as in his earlier objections under Section 47 CPC. The executing Court, therefore, rejected he claim of the judgment debtor-petitioner by observing as under : "... The applicant has now filed the objection petition in question on the same grounds which were taken in his written statement filed in the ejectment petition as well as in his earlier objections under Section 47 CPC. Therefore, there is no use to frame the issues in the present objection petition, which has already been decided between the parties.......... In view of my above discussion, it is held that the objection petition filed by the applicant is false and frivolous. There is no need to frame the issues and afford an opportunity to the parties to produce their respective evidence in support of their claims, as the matter in controversy has already been decided between the parties. Therefore, the application under Order XXI Rule 97 read with Section 151 CPC for adjudication of objections on behalf of the judgment debtor Ramesh Kumar is dismissed." 7. Shri A.K. Chopra, learned senior counsel for the judgment debtor-petitioner has made strenuous efforts to persuade me to take a view different than the one taken by the executing Court by arguing that there is adjustment of decree and Ashok Kumar had executed a fresh rent note on 31.5.2000. He has further submitted that there is a compromise between Ashok Kumar, one of the decree- holder-respondents, and the judgment debtor-petitioner. He has further submitted that there is a receipt accepting the rent from the judgment debtor-petitioner by the afore-mentioned Ashok Kumar and the same has been placed on record as Ex.A.2. According to the learned counsel all objections raised under Order XXI Rule 97 of the Code have to be decided by the executing Court and under Order XXI Rule 101 of the Code no fresh suit is maintainable for determination of the objections. 8. Shri S.P. Gupta, learned senior counsel for the decree-holder-respondents has submitted that the present case is a classical example of mis-use of the process of the Court. He has maintained that the issue which had already been decided by the judgment and decree dated 16.12.1997 and has attained finality is sought to be raised again which is patently against the well established principles of law. He has maintained that the issue which had already been decided by the judgment and decree dated 16.12.1997 and has attained finality is sought to be raised again which is patently against the well established principles of law. The learned counsel has maintained that the previous objection of compromise with Ashok Kumar, one of the decree-holder- respondents, was raised in his earlier objection petition filed under Section 47 of the Code but the same was rejected on 3.4.2001 by the executing Court which order has been upheld by this Court on 20.2.2002 while deciding C.R. No. 2411 of 2001. Even the SLP against the afore-mentioned order was filed but lateron withdrawn on 26.7.2002 for the reasons best known to the judgment debtor-petitioner. On that score, the learned counsel argued that the order of the executing Court is liable to be upheld and the judgment debtor-petitioner should be restrained from raising any objection in the execution of the judgment and decree passed by the Appellate Authority on 16.12.1997. 9. After hearing the learned counsel for the parties, I am of the considered view that the judgment debtor-petitioner has sheerly mis-used the process of the Court as the ejectment order has already been passed on 16.12.1997 which has been upheld by this Court in CR No. 832 of 1998 decided on 2.11.1999. The rent receipts produced by him (Exs.R.1 to R.3) were found to be forged. Thereafter the judgment debtor-petitioner filed a Special Leave Petition which was dismissed. The decree-holder-respondents filed the execution petition against the judgment debtor-petitioner being execution No. 323 of 2000 instituted on 9.12.2000. The judgment debtor-petitioner raised same objections under Section 47 of the Code which have again been raised under Order XXI Rule 97 of the Code. Those objections were dismissed on 3.4.2001 and his revision petition being CR. No. 2411 of 2001 was dismissed by this Court on 20.2.2002. He filed and withdrew S.L.P. No. 12828 of 2002 on 26.7.2002. It has also been found by the executing Court that the objections sought to be raised before the executing Court under Order XXI Rule 97 of the Code were the same which were either the subject matter of consideration in the judgment and decree dated 16.12.1997 or the objection petition filed under Section 47 of the Code which was dismissed on 3.4.2001 and upheld by this Court on 20.2.2002. It is well settled that similar objections either under one provision or the other cannot be permitted to be raised time and again. In this regard reliance may be placed on the judgment of the Supreme Court in the case of Ravinder Kaur v. Ashok Kumar and another, 2003(2) RCR(Rent) 709 : 2004(1) RCR(Civil) 35 (SC) : 2003(8) SCC 289. In that case also what was decided in the ejectment proceedings and later in the execution petition was sought to be raised again. Such an attempt was condemned by the Supreme Court by observing as under : "The objection that the learned Judge referred to in the impugned order raised by the respondent herein was in regard to the correctness of the site plan. As noted earlier, this very issue was specifically raised in the original ejectment proceedings and was held against the respondents based mainly on the admission of the first respondent which we have already extracted hereinabove. At the cost of repetition, we must restate that this question of identity of the property was never again raised in the appeal before the Appellate Authority, in the revision before the revisional authority, namely, the High Court or in the SLP before this Court. In such circumstances, we fail to understand how this very issue can be reagitated in the execution proceedings by the tenants. It is also to be noticed that the executing Court has rightly observed that reopening of this issue would amount to asking that Court to go behind the decree which is impermissible in law. We must note, this finding of the executing Court is not even noticed by the High Court in the impugned order. The High Court also did not take into consideration the reasoning of the Coordinate Bench of the same High Court in the dismissal order made in CRP No. 5175 of 2002 on 29.10.2002 which while rejecting the similar contention of the respondents had specifically observed that the attempt to the tenants was with a view to delay their ejectment. In such a factual background, we think the impugned judgment is wholly erroneous having no legal or factual basis to sustain it....... This observation is contrary to the finding on Issue 7 in the original proceedings. That apart, this observation is so emphatic that by this the execution petition itself was liable to be dismissed making the eviction decree infructuous. In such a factual background, we think the impugned judgment is wholly erroneous having no legal or factual basis to sustain it....... This observation is contrary to the finding on Issue 7 in the original proceedings. That apart, this observation is so emphatic that by this the execution petition itself was liable to be dismissed making the eviction decree infructuous. It is not the normal practice of the superior court to give a conclusive finding in matters which it remands for further consideration because after a conclusive finding there is nothing to be decided by the Court to which the matter is remanded..... Therefore, raising a dispute in regard to the description or identity of the suit schedule property is only a bogey to delay the eviction by the abuse of the process of the Court. Courts of law should be careful enough to see through such diabolical plans of the judgment debtors to deny the decree- holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system." 10. When the principles laid down by the Supreme Court in Ravinder Kaurs case (supra) are applied to the facts of the present case, the alleged compromise dated 31.5.2000 has already been adjudicated upon when the judgment debtor- petitioner filed objections under Section 47 of the Code and those objections were dismissed on 3.4.2001. As already observed in the preceding paras his revision petition was dismissed by this Court on 20.2.2002. The other objection with regard to the receipt dated 30.10.1986 and 5.1.1987 or the municipal record have already been adjudicated upon by the Appellate Authority in its ejectment order dated 16.12.1997 as upheld by this Court in its order dated 2.11.1999 passed in CR. No. 832 of 1998. Infact the judgment debtor- petitioner has made all efforts to put off the execution of the judgment and decree dated 16.12.1997 on one pretext or the other. The observations of the Supreme Court in Ravinder Kaurs case (supra) show that such delaying tactics should not permitted to succeed as the same are wholly frivolous and vexatious. Therefore, I am of the considered view that this petition is nothing else but a frivolous piece of litigation with a mala fide motive to delay the execution of the decree. The observations of the Supreme Court in Ravinder Kaurs case (supra) show that such delaying tactics should not permitted to succeed as the same are wholly frivolous and vexatious. Therefore, I am of the considered view that this petition is nothing else but a frivolous piece of litigation with a mala fide motive to delay the execution of the decree. 11. For the reasons recorded above, this petition fails and the same is dismissed with costs of Rs. 10,000/-. If the judgment debtor-petitioner still raises any obstruction to the execution of the judgment and decree then the executing Court may consider the necessity of providing police help to the decree-holder-respondents.