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2005 DIGILAW 574 (AP)

Shaik Sharifuddin v. Syed Khader Valli

2005-06-30

L.NARASIMHA REDDY

body2005
L. NARASIMHA REDDY, J. ( 1 ) THE petitioner is the tenant of the respondents in respect of non-residential premises, situated at Kadapa. He filed O. S. No. 673 of 1999 in the Court of the III Additional Junior Civil Judge, Kadapa against the respondents for the relief of perpetual injunction. According to him, he paid a sum of Rs. 50,000/- to the respondents as advance and that the respondents were trying to evict him forcibly, without even offering to refund the said amount. Ultimately, the trial Court decreed the suit through its Judgment dated 20-4-2000. The purport of the decree is that in case the respondents deposit a sum of Rs. 50,000- into the Court, the petitioner shall be liable to vacate the premises. The respondents deposited the amount of Rs. 50,000- as directed by the trial Court. The petitioner is said to have withdrawn that amount. The respondents filed an E. P. 167 of 2002 to enforce their rights under the decree, in the Court of the senior Civil Judge, Kadapa. The petitioner filed E. A. No. 209 of 2002 in the E. P. for rejection of the E. P. , on the ground that it is barred by Section 47 C. P. C. The executing Court dismissed the E. A. , through its order dated 30-6-2003. Hence, this revision. ( 2 ) SRI B. Narasimha Sharma, the learned counsel for the petitioner submits that the E. P. , was not maintainable, since the decree in O. S. No. 673 of 1999 was obtained by the petitioner and the respondents figured as Judgment-Debtors therein. Referring to Rule 10 of Order 21 C. P. C. and the definition of the decree, the learned counsel submits that it was not at all competent for the respondents herein to file the E. P. According to him, no right as such has accrued in favour of the respondents and the purport of the decree is only to grant a perpetual injunction subject to certain conditions. ( 3 ) SRI A. Srinath, the learned counsel for the respondents, on the other hand, submits that the decree in the suit is very clear in its terms and it creates obligation on the part of both the parties. He contends that while the obligation of the respondents was to deposit Rs. ( 3 ) SRI A. Srinath, the learned counsel for the respondents, on the other hand, submits that the decree in the suit is very clear in its terms and it creates obligation on the part of both the parties. He contends that while the obligation of the respondents was to deposit Rs. 50,000/-, the corresponding obligation of the petitioner was to vacate the premises as and when such amount is deposited. ( 4 ) THE petitioner filed a suit against the respondents for the relief of perpetual injunction to protect his leasehold rights over the property. From a perusal of the Judgment of the trial Court in that suit, it is evident that the petitioner contended before the trial Court that he is ready to vacate the suit schedule premises, if an amount of Rs. 50,000/- paid by his father is refunded. The respondents, in turn, admitted their obligation to refund that amount. It was in this context that almost a consent decree came to be passed to the following effect:"that the defendants shall either deposits. Rs. 50,000/- into the Court or file a memo acknowledging the receipt of Rs. 50,000/- by the plaintiff and after receipt of Rs. 50,000/- by the plaintiff from the defendants, the plaintiff shall vacate the suit schedule premises within 15 days from the date of passing the decree. "acting on this decree, the respondents deposited a sum of Rs. 50,000/- and the petitioner had withdrawn the same. A perusal of the decree discloses that on receiving Rs. 50,000/-, the petitioner is underobligation to vacate the premises. He did not choose to do so and on the other hand came forward with the plea that subsequent to the withdrawal of Rs. 50,000/-, he entered into a fresh agreement in relation to the same premises. It was in this context that the respondents filed E. P. No. 167 of 2002. ( 5 ) RULE 10 of Order 21 C. P. C. , does not restrict the right to file an application for execution either to the plaintiff or to the defendant in a suit. Much would depend upon the terms of the decree. It is not uncommon that irrespective of the prayer in a suit, the Courts mould the relief in such a way that the rights of the parties are enforced in law. Much would depend upon the terms of the decree. It is not uncommon that irrespective of the prayer in a suit, the Courts mould the relief in such a way that the rights of the parties are enforced in law. In most of the cases, the relief may be in favour of the plaintiff alone. However, instances are not lacking when the decree delineates the mutual rights and obligations of the parties. For example, in a suit for specific performance, the decree may direct deposit of the balance of consideration by the plaintiff and execution of sale deed by the defendant. Such a decree confers rights on both the parties to enforce the corresponding obligation on the part of the other party. ( 6 ) THE definition of "decree" under subsection (2) of Section 2 C. P. C. , does not indicate that the formal expression of adjudication shall be in favour of the plaintiff alone. Such expression of adjudication may result in a relief exclusively in his favour or partly in favour of both the parties. The definition of expression of the "decreeholder" under sub-section (3) of Section 2 C. P. C. , makes this amply clear. It reads as under: "decreeholder" means any person in whose favour a decree has been passed or an order capable of execution has been made. From this, it is evident that the decree-holder is the one in whose favour a decree has been passed or an order capable of execution had been made, irrespective of the fact whether such person is the plaintiff or defendant in the suit. ( 7 ) IN the instant case, the decree categorically stipulated that on depositing a sum of Rs. 50,000/- by the respondents, the petitioner shall vacate the premises. To that extent, the decree is capable of being executed by the respondents. ( 8 ) THE learned counsel for the petitioner relied upon Section 47 C. P. C. , to sustain his contention. A perusal of that provision not only does not support his contention, but would buttress the action of the respondents, who have chosen to work out the remedies in that very suit. A separate suit, for this purpose would have been clearly barred by Section 47 C. P. C. ( 9 ) FOR the foregoing reasons, this Court does not find any grounds to interfere with the order under revision. A separate suit, for this purpose would have been clearly barred by Section 47 C. P. C. ( 9 ) FOR the foregoing reasons, this Court does not find any grounds to interfere with the order under revision. ( 10 ) THE C. R. P. , is accordingly dismissed. ( 11 ) THE learned counsel for the petitioner submits that his client is taking steps to secure alternative premises and adequate time may be granted, for vacating the suit premises. The learned counsel for the respondents, submits that the petitioner did not pay the rent from 1999 onwards and that he cannot be permitted to stay in the premises any longer. ( 12 ) TAKING these aspects into account, it is directed that in case the petitioner deposits the arrears of rent that have accrued up to June 2005, within two weeks from to-day, he shall be entitled to continue in the premises till the end of October, 2005 subject to: (i) payment of rents regularly for subsequent months, and (ii) his furnishing an undertaking within four weeks from to-day in the executing Court, to the effect that he would vacate the premises without the necessity of any further proceedings. In default of payment of arrears of rent orfiling undertaking as indicated above, the executing Court shall forthwith put the respondents herein in possession of suit schedule premises, duly evicting the petitioner from the premises. ( 13 ) IT is made clear that the findings recorded in this C. R. P. , shall not have any bearing on other transactions, if any, existing between the parties.