Furkan Ahmad vs Tahira Beghum

Manoj Misra, J.—Heard learned counsel for the petitioner and Sri Lalit Kumar for the decree holder/respondents and perused the record.

The present petition has been filed challenging an order dated 9.9.2014 passed by the Additional Judge Small Causes Court, Moradabad in Execution Case No. 9 of 2009 and the order dated 18.3.2017 passed by Special Judge (EC) Act/Additional District Judge, Moradabad in SCC Revision No.12 of 2014.

A perusal of the record would reveal that the plaintiff/decree holder/respondents had filed SCC Suit No. 141 of 1985 against the petitioners including their predecessor-in-interest for arrears of rent and eviction from the premises which was described at the foot of the plaint. The description of the premises was disclosed by mentioning the mohalla name and by providing the boundaries of the suit property. The defendants contested the suit proceedings but nowhere challenged the identity of the suit property or their possession in the suit property described in the plaint.

The trial court framed as many as five points for determination, out of which the relevant were as under:

(i) whether there was landlord-tenant relationship between the plaintiff and the defendant;

(ii) whether the defendant had been a defaulter in payment of rent;

(iii) whether the judge small causes had jurisdiction to hear the matter; and

(iv) whether the notice was valid.

All the issues were decided in favour of the plaintiff/respondent by judgment and decree dated 28.3.2009. Thereafter the matter was challenged in revision which was dismissed and thereafter Writ A No. 46850 of 2010 was filed which was also dismissed by this Court vide order dated 11.8.2010.

The plaintiff/respondents put the decree for execution by filing Execution Case No. 9 of 2009 in which an application under section 47 of the Code of Civil Procedure was filed by the petitioners who were the judgment debtors. In the objection various pleas have been raised assailing the title of the landlord respondents as also in respect of executibility of the decree.

In so far as the plea in respect of the title of landlord/respondent is concerned, that could not have been raised in view of the finding of the trial court that there existed a landlord-tenant relationship between the parties and, therefore, the execution court could not have gone behind the decree and, in any case, if there was any grievance in respect of the finding, there had to be an independent suit in that regard but such question could not have been raised in the execution proceeding.

As regards executibility of the decree, the learned counsel for the petitioner has submitted that the decree drawn on the basis of judgment passed by the court below does not disclose the mohalla name where the suit property is located and, therefore, in absence of specific description of the suit property in the decree, the court could not have executed the decree because the execution court is only to consider the decree and it could not take into consideration the description of the suit property given in the plaint.

It has also been submitted that as a suit has been instituted by the mother of the petitioner, who is the real owner of the suit property, the decree cannot be executed without adjudicating title.

The submission of the learned counsel for the petitioner that the Execution Court cannot take notice of the description of the suit property given in the plaint cannot be accepted because from a reading of the decree it is clear that the suit has been decreed. Under the circumstances, it is open to the court to refer to the plaint for ascertaining the suit property in respect of which the suit was decreed because ordinarily the decree is drawn on the basis of the judgment . In this case, the suit property has been fully described in the plaint and the identity of the suit property had not been challenged in the written statement. This Court also finds that the suit property has been fully described not only by mohalla name but also by boundaries. Under the circumstances, this Court finds no substance in the submission that as the suit property was not properly described, the decree was not executable.

In respect of the third submission of the learned counsel for the petitioner that the mother of the petitioner has instituted a suit and, therefore, the title aspect also has to be decided by the execution court, this Court is of the view that the court which is executing the decree is a court of small causes and decree has also been passed by a court of small cases, which is not empowered to decide question of title. The execution court while executing the decree has to execute the decree as it stands. The petitioner had been a party in the suit proceeding and, therefore, he has to suffer the consequences of the decree. At this stage it may be apposite to observe that the decree under execution is by a Court of Small Causes which does not have final say in matter of title relating to immovable property, therefore any adjudication by it in respect of right/title to immovable property is not final and is subject to regular title suit.

Under the circumstances, this Court finds no good reason to entertain the challenge to the rejection of the objection under section 47 of the Code of Civil Procedure.

The petition is dismissed.