(2001) 1 J & K LAW
REPORTER 47 at Jammu Before Hon’ble Mr. Justice Arun Kumar Goel, Judge Mst. TARO DEVI & ORS.
Petitioners Civil Revision No. 124/1998 decided on 11.10.2000. Civil Procedure Code- Revision filed against an order of Sub-Judge dismissing application under Order 21 Rule 29 - Case law discussed - Revision petition dismissed. In the face of the aforesaid discussion, what emerges is that the petitioners suffered the decree in the ejectment proceedings, which has become conclusive between them. In addition to this there is no question of petitioners suffering irreparable loss and injury, incase the respondents are allowed to execute the aforesaid decree passed in their favour and against the petitioners as their interest can be well protected by maintaining the property, so that the petitioners can be put in possession of the property that falls to their share after passing of final decree in the partition suit. Looking to the over all circumstances of this case, it is felt that the mischief that would be there on account of the decree being not executed will be comparatively larger. As already observed that by purchase of undivided share from one of the owners, status of the parties as landlord and tenant is not determined. Another salient feature of this case is that the plea of purchase was put up in the eviction suit referred to hereinabove for dismissal of the suit. Such a plea has been negatived. Court in the eviction suit was competent to have determined that question between the same parties had in fact not accepted the same. Therefore, on this count also, the application of the petitioners has rightly been dismissed. Advocates who appeared in this
case : Cases referred : Chronological
This revision is directed against the order passed by learned Sub-Judge (C.J.M), Udhampur dated 25.11.1998 in File No.3/Execution .By means of impugned order, application under Order 21, Rule 29 in execution as well as another application, under Order 39 of the Code of Civil Procedure, both have been dismissed. When this matter was taken up for final hearing, learned counsel for the petitioners maintained that this revision may be treated as having been filed against the order passed by the trial Court on an application under Order 21, Rule 29 of the code of Civil Procedure against denial of stay of execution levied by the respondents. Facts regarding which learned counsel for the parties were not at variance are that predecessor-in-interest of the petitioners, namely chuni lal purchased undivided 1/4th share of the property in dispute, which consists of two shops in the ground floor and a Chobara in the first floor. This was purchased on 24.02.1987. A suit under the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 came to be filed on 29.08.1987. Eviction of the tenant was claimed from the shop in question on account of default of payment of rent. This was registered as file No.176/Civil in the court of Sub-Judge, Udhampur and order of eviction was passed in favour of the plaintiffs, i.e. present respondents as well as in favour of the defendants, i.e. present petitioners. Feeling aggrieved by the said decree of the trial Court, petitioners preferred first appeal in the court of learned District Judge, Udhampur. This was dismissed on 19.08.1998 in file No.21/Appeal. Petitioners were still not satisfied with the said decree of the first appellate Court, as such, they filed Civil Second Appeal No.17/1998. It was dismissed on 02.09.1998. In respect of the residential portion, i.e of Chobara out of the 1/4th share purchased by Chuni Lal as aforesaid, a suit was filed under the Right of Prior Purchase Act, 1993 (1936 A.D) by the respondents, which was decreed and said decree has been upheld upto High Court. In the back ground of the aforesaid facts and circumstances, what appears to have been done by the respondents is that they sued out execution of decree of ejectment against the petitioners, wherein application under Order 21, Rule 29 of the Code of Civil Procedure was filed by the petitioners. At the same time, they also filed a suit for partition by metes and bounds, so far as their share in the suit property is concerned on the basis of the sale deed referred to hereinabove. Alongwith it an application under Order 39 of the Code of Civil Procedure was filed. As already observed, both these applications have been dismissed. Mr. S. D. Sharma, learned counsel appearing for the petitioners submitted that the suit for partition is pending after 02.09.1998 and in case the respondents are allowed to execute the decree in question, the suit for partition becomes infructuous, which will result in causing irreparable loss and injury, for which no monetary compensation would be adequate. Besides this, it will lead to multiplicity of litigation also. He further pointed out that in case execution of decree is not stayed, it will lead to other complications and make the ultimate success of the petitioners merely illusory. All these pleas, on the other hand, have been controverted by Mr.L.K.Sharma, learned counsel appearing for the rerspondents. He urged that the present application is nothing, but an abuse as well as misuse of the process of law and Court. In case the petitioners ultimately succeed, their interest can be adequately protected by passing such orders as this Court may deem just and proper. By referring to the aforesaid admitted facts, he also urged that after having suffered a decree for eviction as aforesaid, petitioners are precluded from objecting to the execution of the same, simply on the basis of a suit for partition having been filed. According to him, a decree for ejectment determined the status of the parties and particularly in the light of the facts that the pleas on the basis of which stay is being asked for has been negatived. A reference was made by him to the findings recorded in the ejectment suit under issues No.1 and 5. As already noted on the admitted facts of this case, plea of petitioners having purchased 1/4th share was put up to negative the claim of the respondents in the earlier suit for eviction right upto High Court. This plea has been negatived. Thus petitioners cannot be allowed to reagitate the same plea either in the suit for partition and/or in the execution of the decree, where in both the proceedings, they filed separate applications for stay against execution. In this behalf, it may be worthwhile to observe that there is no question of extinction of the lessee’s interest simply because the lessors like petitioners purchased part of the share of one of the lessee’s. In such a situation, there arises no question of lease-hold and reversion to be co-inciding. Similarly, there is no question of the break in the integrity of the lease in question. Reason being that simply by purchase, the right does not get merged. Only consequence of such a purchase is that the purchaser like predecessor-in-interest of the petitioners (Late Chuni Lal) becomes one of the several joint holders. Another conclusion of such a purchase that needs to be taken not of is that the right of the lessee is not effected in any manner as also his liability to the lessor remained in-tact. Body of landlords is one unit and each one of them possess certain common rights, whereas the lessee is liable to discharge common obligations towards all of them. On behalf of the petitioners, reliance was placed on the cases reported in case titled as Shaukat Hussain &Ali Akram and others Appellants v. Smt. Bhuneshwari Devi (dead) by L.Rs. and others Respondents, AIR 1973 S.C.528, Bibijan & others Petitioners v. Durga Bai and another Respondents, AIR 1988 Orissa 246 and Smt. Ramkumari Devi Petitioiner v. Tarkeshwar Nath Pandev and others Opposite Parties. AIR 1975 Patna 110 and Subash Kumar Singh and others Petitioners v. Sheo Balak Singh and others Opposite Party, AIR 1975 Patna 307. On the other hand, Mr. L. K. Sharma placed reliance on cases titled as Krishna Singh Petitioner v. Mathura Ahir and others Respondents AIR 1982 S.C. 686, Mst. Kamroon Nisha Bibi and others Petitioiners v. Yusuf Khan and others Respondents AIR 1987 Orissa 234 and Quazi Talifiqur Rahman Petitioner v. Sital Prasad Das and others Opposite Parties, AIR 1977 Gauhati 25. All these cases will be examined hereinafter. AIR 1988 Orissa (supra), in this case an order of eviction was passed against the judgment-debtor under the provisions of Orissa Rent Control Act and for execution of this order, proceedings were levied against the judgment debtor. In this case executability of decree was questioned by the Mother and minor brothers of the judgment-debtor on the plea that the order of eviction is not against them. They were unsuccessful. A suit was filed, wherein Receiver was appointed. In this case, prayer made was that they have acquired interest of monthly tenant from one Sadhu Khan under the aforesaid Rent Act. This Sadhu Khan was the husband and father of the petitioners. It was in this background, the prayer for the grant of stay against execution under Order 21, Rule 29 of the Code of Civil Procedure was considered and allowed. On the facts of the present case, ratio laid down in this Judgment has no applicability. In AIR 1973 S.C.528, when a decree passed by Small Causes Court was transferred to the Court of Munsiff Gaya (execution, title of suit ) filed in the transferee court of the said Munsiff by the judgment debtor on the plea that the decree of the Small Causes Court was fraudulent, illegal and without jurisdiction. It was on this basis as well as on the basis of the provisions of Order 21, Rule 90 of C.P.C., when the matter was considered and the appeal of the petitioners/judgment-debtor was dismissed. There can hardly be any dispute with the proposition that a decree obtained either by fraud, collusion can be established or regarding the same having been passed by an incompetent Court can always be proved. Thus on such a proof, it is a nullity. There can be further hardly any dispute on this legal aspect of the case. However, in the background of this case, this decision of the Supreme Court also does not improve the case of the petitioners in any manner whatsoever. In the case of Smt. Ram kumari Debi v. Tarkeshwar Nath Pandey and others (supra), again the exparte decree was challenged on the plea that they had no notice of the suit and the service of the summons etc. were all suppressed. On the facts peculiar to that case that the plea of the respondents therein was allowed. Again when a reference is made to the decision of AIR 1975 Patna 307, that case also does not in any manner improve the plea of the petitioners and the ratio laid own therein is of no benefit to the case of the petitioners. In the case of Krishan Singh v. Mathura Ahir and others (supra), Supreme Court took exception to the application for stay of execution having been allowed in a case where under the case (like the present one) decree for possession had attained finality intra-parties. As already noted, parties were not at variance that the order of eviction passed against the petitioners has attained finality, because no appeal has been filed so far, judgment of this Court in Civil Second Appeal No.17/1998 dated 02.09.1998 is concerned. While considering an order of possession by way of restitution and the same having been confirmed under revision in a subsequent suit for eviction, the prayer to stay the restoration of possession or temporary injunction could not be granted. In the instant Revision Petition situation is exactly the converse. Reason being that if the stay of execution is allowed as claimed, it will deprive the respondents, who are decree-holders for execution to the benefit of the decree. In the face of the aforesaid discussion, what emerges is that the petitioners suffered the decree in the ejectment proceedings, which has become conclusive between them. In addition to this, there is no question of petitioners suffering irreparable loss and injury, in case the respondents are allowed to execute the aforesaid decree passed in their favour and against the petitioners as their interest can be well protected by maintaining the property, so that the petitioners can be put in possession of the property that falls to their share after passing of final decree in the partition suit. Looking to the over all circumstances of this case, it is felt that the mischief that would be there on account of the decree being not executed will be comparatively larger. As already observed that by purchase of undivided share from one of the owners, status of the parties as landlord and tenent is not determined. Another salient feature of this case is that the plea of purchase was put up in the eviction suit referred to herein above for dismissal of the suit. Such a plea has been negatived. Court in the eviction suit was competent to have determined that question between the same parties had in fact not accepted the same. Therefore, on this count also, the application of the petitioners has rightly been dismissed. On the question that the petitioners have purchased a part of the premises as claimed by them and they are being liable to discharge common obligations in its entirety is no more res-integra, in view of the decision of the Supreme Court reported in AIR 1951 S.C 186, Badri Narain, Appellant v. Rameshwar Dayal and others, Respondents. No other point is urged. On an over all examination of the whole case as well as a consequence of the aforesaid discussion, there is no merit in this Revision Petition, which is accordingly dismissed. Trial Court is directed to proceed with utmost expedition and despatch for the execution of decree passed by it in File No. 176/Civil, on 31.07.1992, in case titled as Nanak Chand and others Vs. Subash. Chander and ors. (heirs of the deceased Chuni Lal), which has attained finality as noted hereinabove. However, it is orderd that respondents will not part with the possession of the shop in question, till the suit for partition is finally decided. Such a direction has been necessitated keeping in view of the fact that if ultimately shop or any protion thereof falls to the share of the petitioners on account of any right and / or equity having been created by the petitioners in favour of third party may not make the ultimate decree in-effective in this partition suit. Even otherwise, both the learned counsel appearing for the respondents stated that their clients will not part with possession to any one and will also not create any right or equity in favour of a third party. Subject to these directions, this Revision Petition is hereby dismissed alongwith connected C.M.P. Interim direction passed by this Court on 03.12.1998 shall stand vacated forthwith. No costs. |
