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2012 DIGILAW 979 (ALL)

Archana Garg v. State of U. P. and others

2012-04-25

SHASHI KANT GUPTA

body2012
Shashi Kant Gupta, J.— 1. As the point involved and the parties in these two writ petitions are one and same, they are taken up together for disposal by common order. 2. These writ petitions are directed against the common order dated 18.11.2010 passed by the Executing Court/Additinal District Judge, Court No. 2, Ghaziabad in Execution Case No. 3 of 2001 and Execution Case No. 4 of 2001 (Archana Garg Vs. District Malaria Officer) whereby the execution applications were dismissed as fully satisfied. 3. Brief facts of the case as set out in the writ petition are as follows; 4. The petitioner was the landlady of the premises in question i.e. R-2/15 Rajnagar, Ghaziabad. The two portions of the premises in question were separately taken on rent by the District Malaria Officer, Ghaziabad with effect from 1.1.1996 at the rate of Rs. 2000/- and Rs. 2500/- per month respectively. The petitioner was paid rent upto March 1996 for three months but thereafter neither the premises of the petitioner was vacated nor any rent was paid to the petitioner. As a result thereof, the petitioner filed two separate SCC Suit No. 18 of 1999 and 17 of 1999 for arrears of rent and ejectment. The aforementioned suits were decreed in favour of the petitioner by two separate judgment and orders both dated 3.11.2000 against the opposite parties. 5. When the opposite party did not comply with the judgment and decree dated 3.11.2000 passed by the court below in the aforesaid suit, the petitioner instituted two separate execution proceedings on 30.1.2001 which were registered as Execution Case No. 3 of 2001 and Execution No. 4 of 2001. The opposite parties paid Rs. 3,48,000/- in total to petitioners in the aforementioned execution cases. 6. The Executing Court while passing impugned order dated 18.11.2010 observed that since the costs was not awarded to the petitioner, he was not entitled for any costs. The Executing Court also observed that the total amount due under the decree passed in Suit Nos. 17 of 1999 and 18 of 1999 was Rs. 3,47,500/- and since Rs. 3,48,000/- was already paid to the petitioner by judgment debtor-tenant, the execution applications are liable to be dismissed as the decree had been fully satisfied. Hence, the present writ petition. 7. 17 of 1999 and 18 of 1999 was Rs. 3,47,500/- and since Rs. 3,48,000/- was already paid to the petitioner by judgment debtor-tenant, the execution applications are liable to be dismissed as the decree had been fully satisfied. Hence, the present writ petition. 7. Learned counsel for the petitioners referred to the operative portions of the judgment and order dated 3.11.2000 passed by the trial court in the SCC Suit Nos. 18 of 1999 and 17 of 1999. For ready reference, they are quoted as under; SCC Suit No. 18 of 1999 @ Hindi @ SCC Suit No. 17 of 1999 @ Hindi @ 8. A perusal of the order dated 3.11.2000 passed by the trial court clearly goes to show that the suit was decreed with costs since it was mentioned in the said order that "@ Hindi @", as such, the executing court has erred in not considering the fact that the suit was decreed with costs by the court below. The court below while decreeing the suit in favour of the petitioner had awarded costs. It is also notable that amount due against the tenant in pursuance of the decree was given in installments as it is clear from the Annexure-4 filed along with the counter affidavit stating that on 27.7.2002, 29.3.2003 and 9.1.2001, Rs. 44,000/-, 6,000/- and Rs. 98,000/- (totaling Rs. 3, 48,000/-) respectively were given to the petitioner in pursuance of the order dated 17.11.2000 passed in SCC Suit Nos. 18 of 1999 of 17 of 1999. Thus, there was delay in payment of the decreetal amount to the petitioner, as such, the petitioner was also entitled for the interest on the delayed payment. This aspect of the matter has also not been considered by the executing court while passing the order dated 18.11.2010. It is also notable that opposite parties vacated the premises in question on 15.9.2001, therefore, the petitioner was also entitled for damages upto 15.9.2001 along with the interest on the delayed payment. 9. The reason assigned by the court below is superficial and has applied a very casual approach and has come to a cryptic, abrupt and erroneous conclusion. The impugned order passed by the court below is based on complete misreading of the case and misconception of the legal position relevant to the matter and the impugned order looked from any angle cannot stand the scrutiny of law. 10. The impugned order passed by the court below is based on complete misreading of the case and misconception of the legal position relevant to the matter and the impugned order looked from any angle cannot stand the scrutiny of law. 10. In view of the above, the orders passed by the executing court dated 18.11.2010 in Execution Cases No. 3 of 2001 and 4 of 2001 are set aside and the matter is remanded back to the concerned executing court to pass afresh order keeping in view the observations made in this order after considering the material available on record and giving opportunities to the parties concerned. 11. Let a copy of this order be placed on record of the connected Writ Petition No. 41416 of 2011. _____________