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2018 DIGILAW 1589 (ALL)

PUNJAB NATIONLAL BANK v. ANAND GANERIWAL

2018-07-20

VIVEK KUMAR BIRLA

body2018
JUDGMENT Hon’ble Vivek Kumar Birla, J.—Present petition was heard alongwith SCC Revision No. 13 of 2018. 2. Heard Sri Tarun Varma, learned counsel for the petitioner-landlord (opposite party in the revision) and Sri Ashok Kumar Bhatnagar, learned counsel for the respondent-Punjab National Bank (hereinafter referred to as the ‘Bank’) (revisionist in the SCC revision). 3. Matter under Article 227 No. 3955 of 2018 has been filed with a prayer in the nature of mandamus commanding the Additional District Jude, Court No. 09, Gorakhpur (respondent No. 1) to hear and decide the Execution Case No. 1008/2015 (Anand Ganeriwal and another v. Punjab National Bank) within a fixed period of time as determined by this Hon’ble Court preferably on the next date fixed in the matter. 4. SCC Revision No. 13 of 2018 has been filed for setting aside the judgement and order dated 6.1.2018 passed by the Additional District Judge, Court No. 9, Gorakhpur in Misc. Case No. 651 of 2017 (Punjab National Bank v. Anand Ganeriwal and another) under Section 47 CPC read with Section 151 CPC. Both party agree that decision of the petition being Matter under Article 227 No. 3955 of 2018 would depend upon the result of SCC Revision No. 13 of 2018, which was filed earlier in point of time against the rejection of the objections filed by tenant-Punjab National Bank under Section 47 read with Section 151 CPC, therefore, with consent of learned counsel for the parties, connected SCC Revision has been heard on merits. Facts, as stated in the revision as well as in the affidavit filed in support of the Stay Application and the counter and rejoinder-affidavits filed in the revision, are being taken note of for the purpose of disposal of the revision as well as the petition. 5. Before proceeding further, it would be appropriate to take note of the order dated 15.2.2018 passed by this Court in the revision, which is quoted as under: “Heard Sri Ashok Bhatnagar, learned counsel for the revisionists-judgment debtors and Sri Tarun Verma, learned counsel for the plaintiff-decree holder. This revision under Section 25 of the Provincial Small Cause Court Act, 1887, has been filed praying to set aside the judgment and order dated 6.1.2018 in Misc. Case No. 651 of 2017 (S.C.C. Execution Case No. 1008 of 2015) arising from S.C.C. Suit No. 4 of 2011. This revision under Section 25 of the Provincial Small Cause Court Act, 1887, has been filed praying to set aside the judgment and order dated 6.1.2018 in Misc. Case No. 651 of 2017 (S.C.C. Execution Case No. 1008 of 2015) arising from S.C.C. Suit No. 4 of 2011. By the aforesaid impugned order the application 4-C filed by the revisionists-judgment debtors under Section 47 read with Section 151 C.P.C. has been rejected by the Additional District Judge, Court No. 9, Gorakhpur and it has been provided that the Execution Case No. 1008 of 2015 be proceeded. It appears that S.C.C. No. 4 of 2011, filed by the respondents-decree holders, was allowed by judgment and order dated 28.2.2015 and the revisionists-judgment debtors were directed to vacate the premises within two months and to pay arrears and damages. The aforesaid judgment dated 28.2.2015 was challenged by the revisionists-judgment debtors by filing the S.C.C. Revision Defective No. 86 of 2015 (Punjab National Bank and another v. Anand Ganeriwal and another) which was dismissed by this Court by order dated 21.4.2015 as under: “Heard learned counsel for the parties. The present revision has been filed against the judgment and order dated 28.2.2015 passed by Additional District Judge, Court No. 7, Gorakhpur in S.C.C. No. 04 of 11, whereby the suit of the landlord respondent was allowed with the direction to the revisionists to vacate the premises within two months and paid Rs. 21920 from 1.11.2011 to 12.11.2011. It is contended by the learned counsel for the revisionists that the plaintiff respondent has given notice to them treating them to be trespasser but the Court had no jurisdiction to entertain the suit for eviction as a trespasser. There is a lease deed for a fixed time and it is not disputed that the aforesaid notice was given to him after expiry of term of the lease deed. It is further contended that after issuing notice to vacate the premises dated 1.7.2010 the landlords entered into a negotiation process to settle the terms and conditions and permitted the revisionists to continue in possession and also continued to accept rent and the revisionist bank regularly deposited the rent. Thereafter a legal notice to quit has been issued by the landlords by treating the bank as a trespasser and demanded rent of Rs. 5000/- per day, which is highly excessive. Thereafter a legal notice to quit has been issued by the landlords by treating the bank as a trespasser and demanded rent of Rs. 5000/- per day, which is highly excessive. The landlord thereafter filed a suit for eviction and the Court below has passed the order for vacating the premises. It is further contended that in the absence of notice under Section 106 of Transfer of Property Act the suit for eviction is not maintainable. It is next contended that when the plaintiff respondents have consented to the defendant revisionist to continue in possession and has accepted rent after the expiry of the lease deed they have no jurisdiction to file suit for eviction before the S.C.C. Court. Therefore, the judgment and order is bad in law. It is lastly contented that the Court has illegally fixed Rs. 5000/- per day from 13.1.2011 as damages which is highly excessive as the said amount has been paid to that effect. Sri Ajay Bharadwaj, learned counsel appearing for the plaintiff respondents has contended that as per settled law laid down by this Court as well as by the Apex Court that notice under Section 106 of Transfer of Property Act is not required to be given in such cases and it would not deem that the defendant revisionist was holding over as a trespasser after expiry of the lease deed. He further contends that the lease deed lapsed and notice was given to the tenant bank, therefore, the order impugned is perfectly legal and call for no interference of this Court in exercise of power under Section 25 Provincial Small Causes Court Act. Learned counsel for the plaintiff respondent has placed reliance upon the judgment of the Apex Court in the matter of M. Vijayalaxmi v. G. Goverdhan Reddy, (1997) 11 SCC 358 and referred to para 4 of the said judgment in support of his contention. He has further relied upon the judgment of the Apex Court reported in AIR 1981 SC 1550 in the matter of Smt. Shanti Devi v. Amal Kumar Banerjee and referred to para 3 and contended that as per the aforesaid judgment no notice under Section 106 of Transfer of Property Act was required. He has relied upon a judgment of this Court in the matter of Giriraj Prasad v. Shyam Sunder Agrawal, 2010 (2) ARC 417, in support of his contention. He has relied upon a judgment of this Court in the matter of Giriraj Prasad v. Shyam Sunder Agrawal, 2010 (2) ARC 417, in support of his contention. After hearing the learned counsel for the parties and after perusing the order impugned as well as the averments made in the present revision, this Court is of the opinion that the learned counsel for the applicant could not make out any good ground which may warrant interference by this Court in exercise of power conferred under revisional jurisdiction for quashing the order impugned. Accordingly, the prayer for quashing the order impugned is hereby refused. Present revision lacks merit and is dismissed. After the order was passed, Sri Ashok Bhatnagar has prayed that some reasonable time may be given to the revisionists, which is a Bank to vacate the premises and has argued that the amount of damages was arbitrarily fixed without recording any reasons and findings which is highly excessive. Accordingly, one year from today is granted to the revisionist for vacating the premises in question subject to payment of the decreetal amount within the aforesaid period and also damages @ 2500/- per day to be deposited by 07th of each calendar month till handing over the actual possession to the respondents-landlords and also the revisionist shall give an undertaking on oath before the Court below within fifteen days from today with regard to vacation of the premises in question within the time granted above. The amount so deposited by the revisionist may be permitted to be withdrawn by the respondents-landlords, after due verification by the Courts below. In case of default of conditions mentioned above, this protection granted to the revisionist shall automatically stand vacated and it will be open to the Court concerned to execute the order impugned forthwith”. Subsequently, the revisionists-judgement debtors filed a Civil Misc. Modification Application No. 176908 of 2015 for modification of the aforequoted order dated 21.4.2015. The modification application was rejected by this Court vide order dated 11.8.2017 as under: “Heard learned counsel for the defendant-revisionist and Sri Tarun Verma, learned counsel for the plaintiff-respondent. The present modification application has been filed with the prayer to modify the order dated 21.4.2015 passed by this Court to the extent that the revisionist be permitted to continue to occupy the demised premises for one year and to deposit Rs. 21,920/- and Rs. The present modification application has been filed with the prayer to modify the order dated 21.4.2015 passed by this Court to the extent that the revisionist be permitted to continue to occupy the demised premises for one year and to deposit Rs. 21,920/- and Rs. 5,000/- per day from 21.4.2015 till the date of actual handing over the possession. Learned counsel for the defendant-revisionist has drawn attention of this Court to the order dated 21.4.2015, whereby this Court had granted one year time for vacating the premises in question upon payment of rental and and also damages @ 2500/- per day instead of Rs. 5,000/- per day. It is contended that as the order passed by this Court was not uploaded till the filing of present modification application, the revisionist could not file undertaking before the Court below within the time as directed by the Court vide order dated 21.4.2015. Perusal of the order dated 21.4.2015 shows that it contains clear direction that one year time has been granted to the revisionist for vacating the premises subject to payment of decreetal amount and also damages @ Rs. 2500/- per day to be deposited by 07th of each calendar month till handing over the actual possession to the landlords, therefore, said argument raised by the learned counsel for the revisionist has no substance as order is specific. The revisionist was directed for payment of decreetal amount as well as damages @ Rs. 2500/- per day and same was ought to be paid from the date of order of Court below. After hearing the learned counsel for the parties and after perusing the modification application, this Court is of the opinion that no good ground is made out for modifying the order dated 21.4.2015. Accordingly, the present modification application No. 176908 of 2015 is dismissed. No order as to cost.” Perusal of the aforequoted order of this Court dated 21.4.2015 reveals that the revision of the revisionists-judgment debtors was dismissed but some protection was granted to it subject to conditions, firstly, payment of the decretal amount within the stipulated period, secondly, damages @ of Rs. No order as to cost.” Perusal of the aforequoted order of this Court dated 21.4.2015 reveals that the revision of the revisionists-judgment debtors was dismissed but some protection was granted to it subject to conditions, firstly, payment of the decretal amount within the stipulated period, secondly, damages @ of Rs. 2500/- per day to be deposited by 7th of each calender month and, thirdly, to give an undertaking on oath before the Court below within 15 days from the date of the order i.e. 21.4.2015 for vacating the premises in question within the time granted, i.e. within one year. It is admitted before me by learned counsel for the revisionists-judgement debtors that the third condition was not complied with. He, however, states that the first two conditions were complied with. Thus, it is admitted to the revisionists-judgement debtors that the conditions subject to which the order dated 21.4.2015 was passed, were not complied with and, therefore, prima facie it appears that the last paragraph of the aforequoted order dated 21.4.2015 became invocable. The decree passed in SCC Suit No. 04/2011 clearly mentions as under: ^^izfroknhx.kA fdjk;snkj dks ;g Hkh funsZf'kr fd;k tkrk gS fd fnukad 01-11-11 ls 12-11-11 rd :0 21920@& rFkk rRi'pkr~ :0 5000@& izfrfnu dh nj gtkZ oknh dks nks ekg ds vUnj vnk djsaA^^- It is undisputed that the SCC Revision Defective No. 86/2015 filed against the judgment and decree passed in SCC Suit No. 04/2011 was dismissed by aforequoted order dated 21.4.2015 passed by this Court. The modification application filed by the judgment debtor was also dismissed vide order dated 11.8.2017. The conditions of the order dated 21.4.2015 were not fully complied. Therefore, according to the plaintiff-decree holder since the SCC suit was decreed for payment of damages @ Rs. 5,000/- per day for the period from 12.11.2011 till vacation of the disputed premises became payable. Submission of the learned counsel for the judgment debtor/revisionist is that on his modification application an order dated 11.8.2017 in SCC Revision Defective No. 86/2015 was passed in which in the fourth paragraph it is mentioned that “revisionist was directed for payment of decretal amount as well as damages @ Rs. 2,500/- per day and the same was ought to be paid from the date of order of the Court below”, therefore, the damages are liable to be paid only @ Rs. 2,500/- per day and the same was ought to be paid from the date of order of the Court below”, therefore, the damages are liable to be paid only @ Rs. 2,500/- per day from the date of the order of the Court below i.e. the judgment and decree dated 28.2.2015 in SCC Suit No. 04/2011 and not from the date as provided in the decree. Since the interpretation of the judgment and decree dated 28.2.2015 passed in SCC No. 04 of 2011 as upheld by the order dated 21.4.2015 passed by this Court in SCC Revision Defective No. 86 of 2015 and the order dated 11.8.2017 passed on Modification Application is involved, therefore, it would be appropriate that this revision may be placed before the learned Single Judge, who passed the order dated 11.8.2017 on Modification Application No. 176908/2015 in SCC Revision Defective No. 86/2015. Let this revision be placed before the Hon’ble the Chief Justice for nomination and thereafter, if possible, this revision may be put before the nominated Court on 6.3.2018.” 6. Perusal of the aforesaid order would indicate that entire history of the litigation and the orders passed by this Court in SCC Revision Defective No. 86 of 2015, which was dismissed vide order dated 21.4.2015 with some conditions and order passed by this Court in Civil Misc. Modification Application No. 176908 of 2015 rejecting the same vide order dated 11.8.2017 indicated the background that are essential to be taken note of for the purpose of deciding the present SCC Revision, have been taken care of. 7. In view of the above quoted order dated 15.2.2018 passed in the revision, the matter was placed before Hon’ble The Chief Justice for nomination and the revision was nominated to Hon’ble Mr. Justice Rajesh Dayal Khare vide order dated 26.2.2018 in view of the fact that SCC Revision Defecitve No. 86 of 2015 and thereafter, the modification application were rejected by Hon’ble Mr. Justice Rajesh Dayal Khare. However, after the matter was nominated to the Hon’ble Judge, the same was released by the Hon’ble Judge vide order dated 6.3.2018 and thereafter, in view of the order of Hon’ble The Chief Justice dated 2.4.2018, the matter was directed to be placed before the appropriate/regular Bench. This is how the matter has come up before me. 8. However, after the matter was nominated to the Hon’ble Judge, the same was released by the Hon’ble Judge vide order dated 6.3.2018 and thereafter, in view of the order of Hon’ble The Chief Justice dated 2.4.2018, the matter was directed to be placed before the appropriate/regular Bench. This is how the matter has come up before me. 8. It was necessary to give this background as in the order dated 15.2.2018, the regular Court has observed that interpretation of the judgement and decree dated 28.2.2015 passed in SCC No. 4 of 2011 as upheld by the order dated 21.4.2015 passed by this Court in SCC Revision Defective No. 86 of 2015 and the order dated 11.8.2017 passed on Modification Application is involved. Since the matter has been released by the Hon’ble Judge, who has passed the order, therefore, I am required to look into the aforesaid judgement and orders. As such, I proceed to hear the matter accordingly. At the very outset, it may be noted that above quoted order dated 15.2.2018 contains almost entire developments that had taken place before this Court. 9. By the impugned judgement and order dated 6.1.2018 passed by the Additional District Judge, Gorakhpur in Misc. Case No. 651 of 2017, the objections filed by the Bank under Section 47 CPC were rejected on the ground that the judgement and decree of the Court below dated 28.2.2015 passed in SCC No. 4 of 2011 has not been changed or modified by this Court and therefore, the execution has to proceed as per the judgement and decree of the trial Court dated 28.2.2015. 10. Before proceeding further, it is pertinent to note that admittedly, the premises in question had already been vacated by the Bank and possession has been handed over to the landlord-opposite party. 11. It is also pertinent to mention here that the facts and the dispute giving rise to this revision have already been taken note of by this Court in its earlier order dated 15.2.2018. As such, they need not be repeated. The possession of the premises in question having admittedly been handed over, the sole question that remains is regarding the payment of damages payable to the landlord in execution proceedings. 12. As such, they need not be repeated. The possession of the premises in question having admittedly been handed over, the sole question that remains is regarding the payment of damages payable to the landlord in execution proceedings. 12. Submission of the learned counsel for the revisionist-Bank is that the Court below has committed a gross mistake of law in ignoring the order dated 11.8.2017 passed by this Court on the Modification Application wherein it has been categorically clarified that the damages at the rate of Rs. 2500/- per day was ought to be paid from the date of order of the Court below i.e. from the date of order of vacation. It is submitted that this clarification of the judgement dated 21.4.2015 has been wrongly ignored and misinterpreted. He however submitted that once the judgement and decree of the trial Court dated 28.2.2015, which provided for payment of Rs. 5000/- per day as damages, was modified by this Court vide order dated 21.4.2015 by providing that damages shall be paid at the rate of Rs. 2500/- per day to be deposited by 7th of each calendar month till handing over the actual possession to the landlord, was clarified by the order dated 11.8.2017 passed on the Modification Application by clarifying that the revisionist-Bank was directed for payment of decretal amount as well as damages at the rate of Rs. 2500/- per day and the same was ought to be paid from the date of the order of the Court below. It is next submitted that the modification application although was dismissed, however, the same was dismissed with this clarification. Submission, therefore, is that the amount as has been deposited by the revisionist-Bank is in accordance with the judgement of this Court dated 21.4.2015 passed in the SCC Revision and the order dated 11.8.2017 passed on the Modification Application. 13. It has been argued in categorical terms that the Bank had admittedly vacated the premises and has also deposited the entire decretal amount as well as the damages. For this purpose, he had drawn attention to paragraphs 22, 25, 26 and 27 of the affidavit filed in support of the Stay Application and annexure 16 to the affidavit wherein the entire calculation as filed before this Court has been given. For this purpose, he had drawn attention to paragraphs 22, 25, 26 and 27 of the affidavit filed in support of the Stay Application and annexure 16 to the affidavit wherein the entire calculation as filed before this Court has been given. He submitted that the entire decretal amount as well as damages as directed by this Court have been paid within time and therefore, the impugned order is absolutely illegal and contrary to law. He had also drawn attention to paragraphs 16, 17 and 18 of the counter-affidavit filed by the landlord-opposite party to submit that there is no categorical denial of the facts as asserted in the affidavit and the calculation as given in annexure 16 to the affidavit. 14. It was further pointed out that the Bank made all possible effort to comply with all the conditions of the order dated 21.4.2015 passed in SCC Revision Defective No. 86 of 2015. He further pointed out that the Bank filed review application (which was directed to be treated as modification application) dated 12.5.2015 stating therein that since the order dated 21.4.2015 was not uploaded on the website, therefore, the undertaking could not be filed within 15 days as directed by this Court. Under such circumstances, a prayer was made that the revisionist-Bank be permitted to continue to occupy the premises in question for one year on his giving undertaking within one month before the Court below and to deposit Rs. 21,920/- and Rs. 5000/- per day from 21.4.2015 till the date of actual handing over the possession. This application is annexure 6 to the affidavit. 15. Drawing attention to annexure 7 to the affidavit, it was submitted that an application dated 9.4.2016 was filed before this Court for extension of time to vacate the premises in question upto 31.7.2016. Attention was also drawn to the orders annexed as Annexures 1 and 2 to the rejoinder-affidavit, which were passed in Matter under Article 227 No. 2921 of 2016 (Punjab National Bank and another v. A.D.J./Spl. Court and 2 others), which was filed against the order dated 23.4.2016 passed by the Executing Court in Misc. Case No. 1008 of 2015 whereby the Court below has issued show-cause notice to the petitioner as to why the proceeding under Section 340 Cr.P.C. be not initiated against Sri Alok Kumar Mishra, Chief Branch Manager of the Bank. Court and 2 others), which was filed against the order dated 23.4.2016 passed by the Executing Court in Misc. Case No. 1008 of 2015 whereby the Court below has issued show-cause notice to the petitioner as to why the proceeding under Section 340 Cr.P.C. be not initiated against Sri Alok Kumar Mishra, Chief Branch Manager of the Bank. The Court below was requested to fix 1.8.2016 and the proceeding under Section 340 Cr.P.C. against the Bank was kept in abeyance. It was further provided that in the meantime the Bank may try to vacate the premises in dispute and hand over the possession to the landlord according to his affidavit. Two affidavits filed by the Bank were taken note of. Subsequently petition was allowed vide order dated 28.11.2016 (annexure 2 to the rejoinder-affidavit) wherein it was observed that the change of date for vacating the premises cannot tantamount to making a false affidavit and as such, it was also noticed in this order that a review application is also pending in the revision. In such view of the matter, the order of the Court below dated 23.4.2016 was quashed and the proceedings under Section 340 Cr.P.C. were dropped leaving the executing Court free to proceed with the execution in accordance with law to execute the balance decree. Submission, therefore, is that there had been no default much less deliberate default on the part of the revisionist-Bank and the conditions imposed by this Court, while dismissing the revision filed by the Bank challenging the order of the trial Court, were fully complied with by the Bank and therefore, the impugned order is liable to be set aside. 16. Learned counsel for the revisionist-Bank has placed reliance on a judgement of Hon’ble Apex Court in the case of Vashu Deo v. Balkishan, (2002) 2 SCC 50 (paragraph 4) to contend that it is settled law that when on decree for eviction being against tenant, he continues to be a tenant and is liable to pay rent and as such, is not liable to pay any damages as his occupation is not unauthorized or wrongful unlil the passing of decree for eviction, paragraph 4 of the said judgement is quoted as under: “4. Reference to a few relevant provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950, would be appropriate. Reference to a few relevant provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950, would be appropriate. ‘Landlord’ is defined by Clause (iii) of Section to mean “any person who for the time being is receiving or is entitled to receive the rent of any premises as an agent, trustee, guardian or receiver for any other person or who would so receive or be entitled to receive the rent, if the premises were let to a tenant.” The definition specifically provides that ‘Landlord’ includes a tenant in relation to a sub-tenant. Clause (iv) defines ‘lease’ as including a sub-lease. ‘Tenant’, according to Clause (vii), means inter alia the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be, payable for any premises to his landlord including the person who is continuing in possession of the premises after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act. Section which opens with a non-obstante clause, giving it an overriding effect over any other law or contract, enjoins a Court not to pass any decree or make any order in favour of the landlord evicting the tenant unless a case for eviction was made out within the four corners of Section The effect of a combined reading of these several provisions is to spell out two very relevant and significant implications. Firstly, a tenant in relation to a sub-tenant is a landlord and the sub-tenant is a tenant in relation to the tenant who has inducted him on the premises. Secondly, inspite of the tenancy having come to an end under the provisions of the Transfer of Property Act or by the terms of contract, the tenant does not cease to be a tenant and continues to hold that status unless and until a decree for eviction under the provisions of this Act has been passed against him. Where the tenancy premises are governed by rent control law, merely on termination of tenancy the tenant cannot be evicted; the tenant is entitled to continue in possession enjoying status almost on par with a person whose contractual tenancy still subsists. He cannot be evicted unless a ground for eviction under the relevant provision of rent control law is made out. He cannot be evicted unless a ground for eviction under the relevant provision of rent control law is made out. He is not a tenant holding over because his tenancy is not continuing by volition or by act of the parties. Such continuance is attributable to the protection conferred by statute and therefore, he is called a statutory tenant and his tenancy a statutory tenancy (See Gian Devi Anand v. Jeevan Kumar and others, AIR 1985 SC 796 and Damadilal and others v. Parashram and others, AIR 1976 SC 2229 ). The tenancy would determine only on a decree for eviction being passed against him. In Chander Kali Bai and others v. Jagdish Singh Thakur and another, [1978] 1 SCR 625, this Court has held that a person continuing in possession of the accommodation after the termination of his contractual tenancy is yet a tenant within the meaning of the relevant rent control legislation and on such termination, his possession does not become wrongful until and unless a decree for eviction is made against him. If he continues to be in possession after the passing of the decree their he is in wrongful occupation of the premises. In spite of the termination of tenancy by contract or under the general law (other than rent control law), the tenant continues to be a tenant liable to pay rent and is not liable to pay any damages as his occupation is not unauthorized or wrongful until the passing of decree for eviction.” 17. Per contra, Sri Tarun Varma, learned counsel for the landlord-opposite party submits that the conditions imposed by this Court while dismissing the revision vide judgement and order dated 21.4.2018 were not complied with by the Bank and no undertaking was filed within time and therefore, lower Court was right in rejecting the objections filed by the Bank under Section 47 CPC and the original judgement and decree becomes executable and therefore, the SCC Revision is devoid of merit and no interference is warranted in the impugned order. 18. I have considered the rival submissions and perused the record. 19. Before proceeding further, at the cost of repetition I would like to highlight that entire background and the earlier orders passed by this Court have been noted in the above quoted order dated 15.2.2018 passed by this Court in this revision. 18. I have considered the rival submissions and perused the record. 19. Before proceeding further, at the cost of repetition I would like to highlight that entire background and the earlier orders passed by this Court have been noted in the above quoted order dated 15.2.2018 passed by this Court in this revision. It may also be pertinent to take note of two orders passed by this Court in Matter under Article 227 No. 2921 of 2016 dated 29.4.2016 and 28.11.2016, which are quoted as under : “Order dated 29.4.2016 Respondent-1 is proforma respondent. Issue notice to respondents - 2 and 3. This petition has been filed for quashing the order dated 23.4.2016 passed by Executing Court in Misc. Case No. 1008 of 2015 by which the Additional District Judge has issued show-cause notice to the petitioner that as to why the proceeding under Section 340 Cr. P.C. be not initiated against Alok Kumar Mishra, Chief Branch Manager of the petitioner/Bank. A suit has been filed for ejectment of the petitioner/Bank which was decreed by Judge Small Causes Court by judgment dated 28.2.2015. The petitioners filed a revision i.e. SCC Revision (Defective) No. 86 of 2015 which was dismissed by this Court by order dated 21.4.2015. This Court while dismissing the revision has granted one year’s time to the petitioner/Bank to vacate the premises in dispute. For that purpose the petitioner/Bank was required to give an undertaking before Court below within 15 days but the petitioner/Bank did not file the required undertaking within time as prescribed by this Court. Therefore the landlord filed an execution case i.e. Execution Case No. 1008 of 2015 for execution of the decree. In this case the petitioner/Bank filed an application as well as affidavit on 3.3.2016 for grant of time up to 21.4.2016 before Executing Court. Subsequently Alok Kumar Mishra, Chief Manager of Punjab National Bank, Branch Urdu Bazar, Gorakhpur filed an affidavit on 23.4.2016 before Executing Court for grant of time up to 31.7.2016 on which the impugned order has been passed. I have considered the arguments of the counsel for the petitioner. By the order of this Court dated 21.4.2015, the petitioner/Bank was granted one year’s time to vacate the premises in dispute and an undertaking was required to be filed within 15 days but as the undertaking was not given in this respect therefore execution proceeding was started by the landlord. By the order of this Court dated 21.4.2015, the petitioner/Bank was granted one year’s time to vacate the premises in dispute and an undertaking was required to be filed within 15 days but as the undertaking was not given in this respect therefore execution proceeding was started by the landlord. Now in the execution proceeding, the petitioner/Bank filed an affidavit on 23.4.2016 for grant of time up to 31.7.2016 to vacate the premises in dispute on which the show-cause notice has been issued against the petitioner/Bank for initiation of proceeding under Section 340 Cr. P.C. In the facts of the case that petitioner is a nationalized Bank and for the purposes of shifting the Branch the petitioner/Bank has obtained new premises on lease and according to the petitioner construction of strong room is still to be made. In such circumstances, it is appropriate that petitioner/Bank may be granted time up to 31st July, 2016 to vacate the premises in dispute. The trial Court is requested to fix 1st August, 2016 in the execution case and till then the proceeding under Section 340 Cr. P.C. against the petitioner/Bank shall be kept in abeyance. In the meantime the petitioner/Bank may try to vacate the premises in dispute and hand over the possession to landlord according to his affidavit. List this case on 4.8.2016" “Order dated 28.11.2016 Heard Sri Ashok Shankar Bhatnagar, learned counsel for the petitioner and Sri Tarun Varma, learned counsel appearing for the respondents. The petitioner has filed this petition under Article 227 of the Constitution of India against the order dated 23.4.2016 passed by the Additional District Judge/Special Judge (Anti Corruption), Gorakhpur in proceedings for execution of a decree passed in S.C.C. No. 4 of 2011. The Court below by the said order has directed Alok Kumar Mishra, Chief Branch Manager, Punjab National Bank to appear and to show-cause why proceedings under Section 340 Cr.P.C may not be drawn and he should be punished for filing a false affidavit paper No. 21-Ga. The facts of the case reveal that the respondent Nos. 2 and 3, the owners and landlords of the property instituted SCC Suit No. 4 of 2011 for rent and eviction against the Punjab National Bank. The said suit was decreed and SCC Revision (Defective) No. 86 of 2015 was dismissed by this Court on 21.4.2015. The facts of the case reveal that the respondent Nos. 2 and 3, the owners and landlords of the property instituted SCC Suit No. 4 of 2011 for rent and eviction against the Punjab National Bank. The said suit was decreed and SCC Revision (Defective) No. 86 of 2015 was dismissed by this Court on 21.4.2015. In dismissing the revision the High Court permitted the bank to vacate the premises within a period of one year on furnishing an undertaking by the Bank in the Court below. The period of one year was to expire on 21st April, 2016. The bank could not submit the undertaking but an affidavit was filed stating that the premisses shall be vacated by 30th April, 2016. Subsequently, the Bank realized that it may not be possible for it to vacate the premisses by the said date and another affidavit was filed stating that it will be vacating by 31st July, 2016. At the same time, the Bank had applied for review of the judgment and order dated 21.4.2015 passed by the High Court in SCC Revision (Defective) No. 86 of 2015. It is admitted to the parties that the Bank according to the aforesaid affidavit has already vacated the premisses in dispute and has delivered its possession to the respondent Nos. 2 and 3. However, the execution of the decree is proceeding for the purposes of realization of arrears of rent/damages. It appears that on account of the aforesaid two affidavits so filed by the Branch Manager on behalf of the Bank stating to vacate the premisses by 30th April, 2016 and then by 31st July, 2016 the proceedings under Section 340 Cr.P.C. have been drawn against him. The aforesaid facts and circumstances as well as the contents of the affidavits make it clear that no false affidavit was actually filed. The change of date for vacating the premisses cannot tantamount to making a false affidavit. Sri Tarun Varma, learned counsel for the respondent Nos. 2 and 3 states that the respondents have no interest in prosecution of the Branch Manager or any other officer/official of the Bank under Section 340 Cr.P.C. and the matter should be brought to an end so that the execution may proceed on merits. Sri Tarun Varma, learned counsel for the respondent Nos. 2 and 3 states that the respondents have no interest in prosecution of the Branch Manager or any other officer/official of the Bank under Section 340 Cr.P.C. and the matter should be brought to an end so that the execution may proceed on merits. The petitioners in this petition are only concern with the proceedings under Section 340 Cr.P.C. In view of the aforesaid facts and circumstances, as apparently no false affidavit has been filed, the proceedings drawn by the Court below vide order dated 23.4.2016 are quashed and those under Section 340 Cr.P.C are dropped leaving the executing Court free to proceed with the execution in accordance with law to execute the balance decree. It is also open to the petitioner to seek expeditious disposal of the review application. The petition is allowed.” 20. In the present case, it is not in dispute that out of three conditions imposed by this Court by order dated 21.4.2015. Two conditions were complied with and the only condition that undertaking shall be filed within 15 days for vacating the premises in question was admittedly not complied with. In view of the order dated 29.4.2016 passed by this Court in Matter under Article 227 No. 2921 of 2016 whereby the Bank was granted further time to vacate and hand over the possession of the premises in question by 1.8.2016 cannot be said that the condition for vacating the premises in question was not complied with. Once the time was extended for vacating the premises in question and the same was actually vacated within the time granted and not only this, affidavits were also filed in the execution proceeding that the premises will be vacated and an explanation for not filing the undertaking within time has been given and for this purpose even a review application (which was converted into modification application) was also filed on 12.5.2015, which remain pending in this Court and was disposed of by this Court vide order dated 11.8.2017, I find that no prejudice has been caused to the landlord-opposite party. The object of filing of undertaking is to ensure the compliance of order of vacation of the premises in question. The object of filing of undertaking is to ensure the compliance of order of vacation of the premises in question. Since the time, for vacating the premises in question within time granted, was extended by this Court vide order dated 29.4.2016 passed in Matter under Article 227 No. 2921 of 2016, I find that the object of undertaking from the Bank stood fulfilled. Further, in case the judgement and order dated 21.4.2015 passed in SCC Revision Defective No. 86 of 2015 was not uploaded, the litigant cannot be made to suffer for any fault or mistake on part of the Court and thus, it cannot be said that there had been any fault much less the deliberate fault on part of the Bank. However, in any case, as already discussed above, even this aspect has also lost its relevance. 21. There is no dispute about the fact that the decretal amount was deposited and the damages as per calculation given in annexure 16 to the affidavit, which has not been rebutted before this Court, were also deposited. Thus, the requirement of deposit of damages as per the judgement of this Court dated 21.4.2015 also stood fulfilled. 22. Insofar as the question as to whether the damages at the rate of Rs. 5000/- per day has become payable or not as per judgement and decree of the trial Court dated 28.2.2015 is concerned, suffice it to say that the aforesaid judgement and decree was modified to the extent that the damage shall be payable at the rate of Rs. 2500/- per day to be deposited by 7th of each calendar month till handing over the actual possession to the landlord. As per calculation damages have been duly paid at the rate of Rs. 2500/- per day. 23. In view of the law laid by the Hon’ble Apex Court in Vashu Deo (supra) and in view of the conditions imposed by this Court in its judgement dated 21.4.2015 having been complied with, the impugned order dated 6.1.2018 holding that the order of the trial Court has become executable and the judgment-debtor tenant is liable to pay damages at the rate of Rs. 5000/- per day from the date of filing of the suit, is totally misconceived, perverse and is based on mis-interpretation of facts on record. 5000/- per day from the date of filing of the suit, is totally misconceived, perverse and is based on mis-interpretation of facts on record. As such, the impugned order dated 6.1.2018 passed by the Additional District Judge, Court No. 9, Gorakhpur in Misc. Case No. 651 of 2017 is not sustainable in the eye of law. However, at this stage Sri Tarun Varma, learned counsel for the landlord-opposite party submits that the correctness of the amount deposited may be verified by the Executing Court and if there is any shortfall, the same may be taken into account. 24. Accordingly, present revision stands allowed. The impugned order dated 6.1.2018 passed by the Additional District Judge, Court No. 9, Gorakhpur in Misc. Case No. 651 of 2017 is quashed. However, the Court below may look into the correctness of the amount deposited by the Bank. Learned counsel for the tenant-Bank has submitted that it has been stated by the Bank before the Executing Court that some of the pay orders/demand drafts deposited before the Court below were deliberately not lifted/encashed by the landlord-opposite party and therefore, it cannot be said that the Bank is in default of such payment. I find substance in this argument. 25. The Court below may also look into all such facts while looking into the correctness of the amount and the amount deposited by the Bank. However, the Executing Court would be at liberty only to the extent to go into the correctness of the amount deposited before it. With the aforesaid observations/directions, present revision stands allowed.