Arun Kumar Srivastava vs Addl. District Judge and Another

R.B. Mehrotra, J.—Sri Harish Dutt Upadhyay filed S.C.C. suit No. 74 of 1980 against the tenant Sri Arun Kumar Srivastava for eviction and arrears of rent. Both the parties entered Into a compromise on 7th March, 1981. The suit was accordingly decided in terms of compromise. In the compromise, it was agreed between the parties that out of the total rent Rs. 50 per month of the disputed accommodation, the Plaintiff is entitled to get. 1/4 rent of his share, i.e., Rs. 12.50 per month from the Defendant-tenant. The total arrears of rent as per compromise of Plaintiffs share was agreed to be Rs. 162.50. It was further settled that the Plaintiff would be entitled to get half of the total costs of the suit. At the time of compromise, Rs. 162.50 was paid to the Plaintiff by the Defendant and remaining amount of Rs. 470 was to be paid till 7th April, 1981. It was also agreed that till 31st December 1987, the Defendant-tenant would vacate the disputed premises and hand over its vacant possession to the Plaintiff and till the possession of the disputed premises Is handed over, the Defendant will continue to pay Rs. 12.50 as rent towards the Plaintiff''s share In the property. The water charges and electric charges were also to be borne out by the Defendant for the period of its use and occupation till actual possession of the disputed premises is handed over to the Plaintiff. On the basis of the aforesaid compromise, Plaintiff decree-holder Sri Harish Dutt Upadhyay moved an execution application 4-G 2 on 24th December, 1991 with the allegation that the tenant Judgment-debtor has failed to vacate the premises till 31st December, 1987 as agreed in the aforesaid compromise.

It was also alleged that the judgment-debtor was neither paying any rent after December, 1987 nor any water charges or electric charges. On the aforesaid grounds, the decree-holder Sri Harish Dutt Upadhyay claimed possession of the portion of the house which was in the possession of the judgment-debtor. He also claimed Rs. 600 at the rate of Rs. 12.50 per month, Rs. 200 towards the water charges at the rate of Rs. 4 per month totalling to Rs. 800 be realised from the judgment-debtor.

In the aforesaid execution application, the judgment-debtor, Sri Arun Kumar Srivastava, the present Petitioner, filed objection u/s 47 of the CPC alleging that only a few months after the said compromise he was allotted a teacher''s flat in July, 1987 in the D.A.V. Post Graduate College where he is serving as a lecturer. He vacated the disputed accommodation on 30th June, 1983 and handed over its vacant possession to the decree-holder and shifted in the aforesaid flat allotted to him by the College. The execution court after considering the evidence of the parties recorded a finding that admittedly Sri Bagish Dutt Upadhyay was the real brother of the decree-holder, Sri Harish Dutt Upadhyay and is co-landlord of the disputed accommodation and since the possession of the house was handed over by the judgment-debtor to Sri Bagish Dutt Upadhyay, decree stands satisfied. By recording the aforesaid findings, the execution court upheld the objection of the judgment-debtor, Petitioner in the present writ petition.

Aggrieved thereby, the Respondent decree-holder filed a revision. The Vth Additional District and Sessions Judge, vide order dated 20th May, 1995 allowed the revision of the decree-holder and set aside the order of the execution court and rejected the objection filed by the judgment-debtor and remanded back the execution application for being executed against the judgment-debtor, the Petitioner. Aggrieved thereby, the judgment-debtor, Sri Arun Kumar Srivastava has filed this petition.

I have heard Sri Govind Krishna, learned Counsel for the Petitioner at length. Since I was not agreeable to the submissions of the learned Counsel for the Petitioner as he persisted with his argument, I gave him an opportunity to file written submission and reserved the order. I have also carefully looked into the written submission filed by the learned Counsel for the Petitioner.

The revisional court in the impugned order has held that so far as the relationship of the landlord and the tenant was concerned, it is not necessary that the landlord should be the owner of the house for the purposes of determining the relationship of the landlord and the tenant. It is sufficient for the purposes of determination of relationship of landlord and the tenant that he pays rent to the landlord. Admittedly, the judgment-debtor is paying rent to the landlord decree-holder. The revisional court has further held that the decree was passed in favour of Sri Harish Dutt Upadhyay Respondent No. 2 in the present writ petition. It was an obligation on the part of the Petitioner to hand over the possession of the disputed property only to decree-holder. In case the judgment debtor has handed over the possession to the brother of the decree-holder, who is a co-owner of the property, it does not satisfy the decree. The execution court was in error in taking a view that since the possession was handed over by the judgment-debtor to the brother of the decree-holder Sri Bagish Dutt Upadhyay, who was the co-owner of the property, the decree stands satisfied. The revisional court held that the said finding was patently illegal and the execution court committed manifest error in upholding the objection of the judgment-debtor that the decree stands satisfied. The revisional court further held that it is a settled proposition of law that the execution court cannot go behind the decree. In the circumstances, even assuming that Sri Harish Dutt Upadhyay, decree-holder was not the full owner of the property, decree could have been satisfied only by handing over the possession to Sri Harish Dutt Upadhyay who was the decree-holder. No satisfaction of the decree can be recorded on the basis that the Judgment-debtor has handed over the possession to Sri Bagish Dutt Upadhyay, co-sharer of the property and the brother of the decree-holder.

Learned Counsel for the Petitioner has mainly submitted that finding of facts having been recorded by the execution court that the possession of the disputed property was handed over by the Petitioner. Judgment-debtor, the revisional court was not Justified in interfering with the aforesaid findings. It has also been contended by the learned Counsel for the Petitioner that after a lapse of 8 years of his handing over the possession, the decree could not have been executed against the judgment-debtor.

No objection has been taken by the Petitioner that the execution of the decree was barred by time. Even otherwise, it was patently clear that the possession of the property was to be handed over by the Judgment-debtor by the year 1987. The execution application was moved in the year 1991 within the period of limitation of 12 years as provided in Article 135 of the Indian Limitation Act. I do not find any error in the judgment of the revisional court taking a view that the decree could have been satisfied only if the judgment-debtor would have handed over the possession of the property to the decree-holder. The handing over the possession of the property to the co-owner of the property cannot be said to be the satisfaction of the decree.

This question can be examined from another angle. If the Petitioner has already handed over the possession of the property and he is residing somewhere else, there is no justification for the Petitioner for contesting the execution application. If the Petitioner is not in possession of the property, as is the case of the Petitioner, then it is beyond the apprehension of any reasonable man as to why the Petitioner should contest the execution of the decree for possession of the property of which he himself does not claim to be in possession.

In Ghan Shyam Das Gupta and Anr. v. Anant Kumar Slnha and Ors. reported in 1991 AU 958. Hon''ble Supreme Court has held as under:

So far the question of executability of a decree is concerned, the CPC contains elaborate and exhaustive provisions for dealing with it in all its aspects. The numerous rules of Order XXI of the Code take care of different situations, providing effective remedies not only to Judgment-debtors and decree-holders but also to claimant-objectors, as the case may be. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the civil court. The remedy under the CPC is of superior judicial quality than what is generally available under other statutes, and the Judge being entrusted exclusively with the administration of Justice, is expected to do better. It will be, therefore, difficult to find a case where interference in writ Jurisdiction for granting (relief) to a judgment-debtor or a claimant-objector can be Justified.

Need not to stress that the decree can be objected to only on the ground that the said decree is either vague or is being executed beyond its parameter and even if any such ground is made out, the Judgment-debtor can either object it by filing the objection as provided in various provisions of the CPC or if the decree is being executed beyond its parameter, the concerned party can file a suit to establish his rights. I am fully satisfied that no case for interference is made out by the Petitioner in exercise of Jurisdiction Under Article 226 of the Constitution of India, the writ petition is accordingly dismissed.