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2018 DIGILAW 1294 (ALL)

Badruduja v. Om Prakash

2018-05-22

SANGEETA CHANDRA

body2018
JUDGMENT : Sangeeta Chandra, J. This petition has been filed praying for quashing the order dated 21.4.2018 passed by the District Judge, Basti in Misc. Case No. 543 of 2017 in Execution Case No. 1 of 2017 (Badruduja Vs. Om Prakash) and also for a direction setting aside the entire proceedings of the Execution Case No. 1 of 2017. 2. Sri Vibhu Rai, learned counsel for the petitioners/tenant has pointed out that the tenant has three shops in his tenancy i.e. shop no. 1, 2 & 3 in House no. 29, Ward no. 08, Mohalla Babhangawa, Gandhinagar, District Basti. The respondent no. 1 - the owner and landlord of the property was arrested and sent to jail in some matter, and therefore, he signed a power of attorney to respondent no. 2 his wife and the respondent no. 2 signed a rent agreement with the tenants for a period of 11 years on 11.11.2013 starting w.e.f. 4.4.2013 to 4.4.2024. The shops in question were given to the tenants on payment of rent of Rs. 3000/- per month to be increased by 10% every year and in exchange the tenants advanced Rs. 3,50,000/- needed by the respondent no. 2 to prosecute the criminal case filed against her husband. 3. When the respondent no. 1 was released from jail, he started to resort to unscrupulous methods for getting the tenants evicted from the shop in question, therefore the tenants on the basis of the rent agreement dated 11.11.2013 filed a Civil Suit bearing Original Suit No. 163 of 2014 for a permanent injunction. 4. The learned Trial Court granted an interim injunction on 29.5.2015 against which the respondent no. 2 filed an Appeal No. 90 of 2015. In the Appeal, the order of temporary injunction was modified to the effect that the petitioners / tenants shall not be evicted from the premises in question except by following due process of law. After the order dated 24.9.2016 passed in Appeal, we do not know what happened in Original Suit No. 163 of 2014 as no details have been mentioned, it is said to be pending till date before the Trial Court. 5. On the other hand, the respondent nos. 1 & 2 filed SCC Suit No. 3 of 2016 before the Judge Small Causes Court, Basti praying for a decree of eviction on the ground of arrears of rent. 5. On the other hand, the respondent nos. 1 & 2 filed SCC Suit No. 3 of 2016 before the Judge Small Causes Court, Basti praying for a decree of eviction on the ground of arrears of rent. This Suit was decreed ex-parte by a judgment and order dated 16.1.2017. The landlords preferred an application for execution of the said decree and a notice was issued to the petitioner in the said Execution Case No. 1 of 2017, and therefore, the petitioners came to know only on 27.1.2017 of the passing of the ex-parte decree. 6. They moved an application under Order IX, Rule 13 for recall of the judgment and order dated 16.1.2017 which was accompanied with an application for condonation of delay of 19 days in filing the same. The delay was condoned on 14.7.2017 but the application under Order IX, Rule 13 was eventually rejected on 26.8.2017 the ground that the entire decreetal amount was to be deposited before filing of the said application for recall under the provisions of Section 17 of the Provincial Small Causes Courts Act, such deposit had not been made by the petitioners. After the application was so rejected, the petitioners filed a Matter Under Article 227 numbered 6006 of 2017 and this Court finding no legal infirmity in the order dated 26.8.2017, dismissed the petition on 7.10.2017. 7. Later on, the petitioner moved an application under Section 47 of the Code of Civil Procedure before the Executing Court on the ground that during the pendency of the Civil Suit No. 163 of 2014, the execution proceedings should remain stayed and also referred to the rent agreement signed on 11.11.2013 to buttress their contention. The said objections under Section 47 has been rejected by the Executing Court by the order impugned dated 21.4.2018, hence this petition has been filed. 8. Sri Vibhu Rai relying upon a judgment of the Hon'ble Supreme Court in Bhavan Vaja Vs. The said objections under Section 47 has been rejected by the Executing Court by the order impugned dated 21.4.2018, hence this petition has been filed. 8. Sri Vibhu Rai relying upon a judgment of the Hon'ble Supreme Court in Bhavan Vaja Vs. Solanki Hanuji Khodaji Mansang 1973 (2) SCC 40 has argued that no doubt the Executing Court cannot go behind the decree, but the Supreme Court has observed in paragraph 19 of the said judgment that for determining the exact and true effect of the decree, the Executing Court can ascertain the circumstances under which the words used in the decree have been employed, and therefore can also look into the proceedings and consider the pleadings made before the regular Court to find out the correct meaning of the decree to give true effect to the same in execution proceedings. 9. I have gone through the judgment and order dated 16.1.2017 passed in JSCC Suit No. 3 of 2017. There is no ambiguity in the language employed by the learned Trial Court that would require the Executing Court to go behind the decree to find out its true meaning and import. There are no words used in the said decree that can be termed to be allowing two interpretations of the same. The decree dated 16.1.2017 is simple in its language and can be easily understood by the Executing Court therefore it does not require the Executing Court to go into the pleadings made before the learned Trial Court and to consider the proceedings before the learned Trial Court. 10. The judgment relied upon by the learned counsel for the petitioners/tenants, namely Bhavan Vaja (supra) is clearly distinguishable. The law has been settled with regard to duty of the Executing Court in several binding precedents of the Supreme Court and of this Court. The Executing Court cannot be allowed to reopen the matter on merits. 11. With regard to factual aspects as discussed in the order impugned, there has been no dispute raised before this Court by the petitioners/tenants that the temporary injunction granted in Original Suit No. 163 of 2014 was modified in Appeal No. 168 of 2017 on 26.8.2017 and now the Civil Suit is pending. No further proceedings to challenge the decree dated 16.1.2017 have been taken by the petitioners/tenants and in so far as the Executing Court is concerned, it is final between the parties. No further proceedings to challenge the decree dated 16.1.2017 have been taken by the petitioners/tenants and in so far as the Executing Court is concerned, it is final between the parties. 12. I do not find any factual or legal infirmity in the order impugned. 13. This petition is dismissed. No order as to costs.