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2011 DIGILAW 2002 (RAJ)

Lal Singh v. Anar Khan

2011-09-16

VINEET KOTHARI

body2011
JUDGMENT 1. - The plaintiff landlord has challenged by way of this revision petition the impugned order dated 07.08.2010 passed by the learned Civil Judge (J.D.), Bail in Civil Execution Case No. 26/198 whereby his application filed under Section 11 Civil Procedure Code before the learned trial Court his been rejected. 2. The landlord Lal Singh filed execution application against the respondent Anar Khan alias Anwar Khan in respect of a decree passed in his favour in execution case No. 26/1998 in respect of decree dated 17.01.1989 in Civil suit No. 17/1988. 3. The learned counsel for the petitioner Mr. Rajesh Parihar submitted that said respondent Anar Khan alias Anwar Khan had separately filed a suit for injunction against the landlord in respect of same suit premises, namely, suit No. 41/1989 which was dismissed on 09.04.1996 and the first appeal against that judgment, namely first appeal No. 16/1996 also came to be dismissed y the first appellate Court on 05.04.2003. The Said Anar Khan filed second appeal before this Court, namely, SBCSA No. 163 of 2003, Anar Khan @ Anwar Khan v. Mangal Singh which also came to be dismissed by this Court on 12.12.2003. However, in the execution proceedings filed by the present petitioner landlord, the said Anar Khan filed objections under Order 21 Rules 97 and 98 Civil Procedure Code in which the plaintiff landlord filed the present application under Section 11 Civil Procedure Code stating that the objections were barred in view of Section 11 Civil Procedure Code. In view of said respondent having lost in injunction suit in respect of same suit premised upto High Court. 4. The learned counsel for the petitioner-landlord also submitted that one Rajesh Kumar also filed similar objections under Order 21 Rules 97 and 98 Civil Procedure Code claiming that the possession of suit premises; a residential house in question was handed over to him by the landlord, once the possession was handed over to landlord. The said objections were also dismissed by the learned executing Court vide order dated 02.11.2007 in execution case No. 26/98. According to the learned counsel for the plaintiff-landlord Rajesh Kumar was a front of same respondent Anar Khan. The said objections were also dismissed by the learned executing Court vide order dated 02.11.2007 in execution case No. 26/98. According to the learned counsel for the plaintiff-landlord Rajesh Kumar was a front of same respondent Anar Khan. He, therefore, submitted that in the execution proceedings filed in the year 1998, the present respondent Anar Khan, on one pretext or other, is trying to raise objections and not permitting the execution to take place in respect of the suit filed in the year 1988. 5. On the other hand, Mr. C.S. Kotwani, urged that the said respondent Ana Khan has independent right over the suit premises as is the tenant of the predecessor in title of present plaintiff Lal Singh, namely, Mangal Singh and therefore, the decree cannot be executed against him and his objection under Order 21 Rules 97 and 98 C.P.C. deserved to be decided on merits by the learned executing Court. 6. This Court on the last occasion on 09.09.2011 had granted some time to the learned counsel for the respondent to seek instruction as to whether the respondent would hand-over the vacant and peaceful possession of the suit premises to the petitioner-landlord within stipulated time or not. However, the learned counsel for the respondent today submitted that the said respondent is not available nor any instruction has been given, therefore, the arguments were heard on merits. 7. In the opinion of this Court, the objections raised by the respondent Anar Khan are wholly unsustainable and objections filed under Order 21, Rule 97 C.P.C. deserve to be rejected. Admittedly, for the same suit premises, he had initiated litigation in the form of injunction suit which he lost up to High Court with the dismissal of his second appeal on 12.12.2003. That order has become final. In the executing proceeding also one Rajesh Kumar about whom learned counsel for the respondent Anar Khan pleads ignorance of knowing also filed similar objections for the same purposes. This Court is at loss to understand how Rajesh Kumar claimed independent right in respect of same suit premises. Obviously, therefore, in inference has to be drawn that said Rajesh Kumar was put up as a front by said respondent Anar Khan. Be that as it may, now again filing of objections in the same lines is without any justification. This Court is at loss to understand how Rajesh Kumar claimed independent right in respect of same suit premises. Obviously, therefore, in inference has to be drawn that said Rajesh Kumar was put up as a front by said respondent Anar Khan. Be that as it may, now again filing of objections in the same lines is without any justification. The application under Section 11 Civil Procedure Code filed by the plaintiff-landlord was apparently justified and such objections were barred in view of previous suit having terminated against the respondent Anar Khan upto this Court. Therefore, these objections under Order 21, Rule 97 of Anar Khan cannot be sustained. 8. Consequently, this revision petition of landlord is allowed and setting aside the order dated 07.08.2011, the learned executing Court is directed to execute the decree forthwith and handover vacant and peaceful possession to the petitioners landlords within a period of 2 months from today, if necessary with police aid.Petition allowed. *******