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2013 DIGILAW 1851 (ALL)

Alok Dubey v. Anand Kishore

2013-07-15

RAJES KUMAR

body2013
JUDGMENT Rajes Kumar,J.: - Heard Sri Rahul Sahai, learned counsel for the petitioner. By means of the present petition, the petitioner is challenging the order dated 19th February, 2011, passed by the Civil Judge, Senior Division, Hathras, in Execution Case No. 01 of 2002 (Girraj Kishore vs. Hari Shanker) by which the objection filed by the petitioner has been rejected and the order dated 18th April, 2013, passed by the Civil Judge, Senior Division, Hathras by which the review application has been rejected. 2. The brief facts of the case are that one Hari Shanker, Son of Sri Kailash Nath, was the tenant of the premises in dispute owned by the respondents.The respondent filed a Release Application, being P.A. Case No. 24 of 1991, under Section 21(1)(a) of the U.P. Act No. 13 of 1972, for release of the tenanted premises on the ground that Smt. Kusum Gupta, the wife of the respondent no.1/1, has done a course of Beautitian and she wants to open a Beauty Parlour in the premises in dispute. The tenant, Hari Shanker Dubey, filed the written statement and contested the case. It appears that during pendency of the case, Hari Shanker Dubey died. The land-lord moved an application before the court that in the written statement, Hari Shanker did not disclose any thing about his family members and whereabouts of his legal heirs are also not known. It has only been stated that he was living alongwith his cousin in Nannumal Ramashankar Dharamshala. 3. The Prescribed Authority/Civil Judge, Senior Division, Hathras, by the order dated 14th November, 2000, allowed the application and released the premises in favour of the landlord. Pursuant to the said order, an execution case has been registered as Execution Case No. 01 of 2002 for execution of the aforesaid order dated 14th November, 2000. Smt. Bhagwan Devi, wife of Kripa Shanker and Alok Dubey, son of Sri Krishna Dubey, filed the objection, under Section 47 of the CPC on the ground that initially the tenancy was in the joint name of Kailash Nath and Kripashanker, who were real brothers, and there was a joint family and they are the family members. The release application has been allowed against a dead person, which is nullity and, therefore, cannot be executed. The release application has been allowed against a dead person, which is nullity and, therefore, cannot be executed. The said application has been rejected by the Civil Judge, Senior Division, on 19th February, 2011 and the review application, filed against the said order, has also been dismissed on the ground that the persons, who filed the objection do not fall within the definition of the family as defined under the Rent Control Act and, thus, they have no locus to file any objection. It has also been stated that Hari Shanker Dubey was the sole tenant in the premises in dispute and it has no where been claimed in the written statement filed by him that there was a joint tenancy in the name of Kailash Nath and Kripa Shanker. The order dated 19th November, 2011 has not been challenged immediately. Instead of challenging the said order, dated 19th February, 2011, the petitioner preferred a review application, which has been rejected by the order impugned dated 18th April 2013 on the ground that no case for review has been made out. The court below reiterated the view taken by it in the earlier order. It has been observed that an application has been moved by Smt. Bhagwan Devi in revision no. 2 of 1999 for her impleadment, which has been rejected on the ground that she does not fall within the definition of family member as defined under the Rent Control Act. The said order remained unchallenged and as such attained finality. 4. Learned counsel for the petitioner submitted that the release application has been allowed against the dead person and, therefore, it is nullity and is not executable. He further submitted that the definition of family under the Rent Control Act is not exhaustive and it includes all the heirs of Hari Shanker Dubey, therefore, the court below erred in rejecting the objection. 5. I do not find substance in the argument of learned counsel for the petitioner. There is nothing on record to suggest that the tenancy was a joint family tenancy. Hari Shanker Dubey was the sole tenant. In the written statement, it has been stated that he was the sole tenant. The other members of the family did not claim that they were the tenants in the premises in dispute. There is nothing on record to suggest that the tenancy was a joint family tenancy. Hari Shanker Dubey was the sole tenant. In the written statement, it has been stated that he was the sole tenant. The other members of the family did not claim that they were the tenants in the premises in dispute. The claim of the petitioner that he is a nephew of late Hari Shanker Dubey and being legal heir, he falls within the definition of 'family' as defined under the Rent Control Act cannot be accepted. A specific definition of 'family' is available in the Rent Control Act which is exhaustive for the purposes of Rent Control Act. 'Family' is defined under Section 3(g) of the Act which says as under: 3(g) "Family", in relation to a landlord or tenant of a building means, his or her- (i) spouse; (ii) male lineal descendants; (iii) such parents, grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normaly residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building. 6. The petitioner does not fall within the purview of any of the person mentioned in the definition of the 'family.' In the circumstances, the application moved by the petitioner raising the objection was not maintainable and has rightly been rejected by the court below. The order dated 14.11.2000 has attained finality as neither any application has been moved to recall the said order nor the same has been challenged before any competent court. It is well settled principle of law that the Execution court cannot go beyond the decree and cannot adjudicate merits of the case. Further, the execution proceeding has been initiated in 2000 whereas the objection has been filed in 2006. There is no explanation as to why the objection has been filed in the year 2006. 7. In the facts and circumstances, as stated above, I do not find any error in the impugned order, which requires interference by this Court. In the result, the petition, being devoid of merits, fails and is dismissed.