Kewal Krishan vs Maheshwar Datt

J.V. Gupta, J.—This revision petition is directed against the order of the executing Court dated September 28, 1987, whereby on the objection petition filed by the tenant-judgment debtor, a local Commissioner was appointed to make certain points clear so as to facilitate proper execution of the decree passed by this Court.

Eviction order passed against the tenant which was maintained upto the High Court. In execution he took the objections that there was no passage except the staircase to the chaubaras in his possession as a tenant under one Ravinder Kumar Khullar and therefore, he could not be ejected from the demised premises That application was contested on behalf of the landlord on the ground that the said Ravinder Kumar Khullar, the other landlord, had agreeed with Baldev Raj the transferor in relation to the decree-holder vide written agreement dated September 10, 1973, that he shall have no right whatsoever in the stair case, in question However, the learned executing court thought it proper to appoint a commission in order to find out whether the judgment-debtor could be ejected from the remaining half portion of the house, in his possession as a tenant under Ravinder Kumar Khullar.

The learned Counsel for the decree-holder submitted that after having lost up to the Supreme Court, no objections were maintainable on behalf of the tenant and that the objection petition filed by him was an abuse of the process of the Court. Moreover, no such objections were taken by the tenant during the ejectment proceedings, and therefore, the tenant could not be allowed to take this objection for the first time in execution proceedings. In support of this contention, the learned Counsel relied upon the judgment of the Supreme Court in R.B.I. Banarsi Dass and Co. Pvt. Ltd. v. M/s. Shree Amar Trading Co. (1989-1) 95 P.L.R. 29.

After hearing the learned Counsel for the parties, I find merit in this revision petition.

That the tenant could not be allowed to raise the objections which he did not raise through available to him during the ejectment proceedings which have been finalised upto the Supreme Court. The executing Court has gone beyond its jurisdiction in entertaining the objection petition filed by the tenant judgment-debtor Not only that, the tenant filed a suit for the grant of the permanent injunction restraining the Defendant (the landlord) from taking possession of the suit property in execution of the ejectment order dated October 31, 1983, on the ground that the chaubara marked ABC and D is the only passage/approach to the chaubara BCE and F occupied as tenant of Ravinder Kumar Khullar. The said suit was filed on April 29, 1987, and was dismissed as withdrawn, on June 1, 1987. Once the said suit was dismissed no objection petition on the same ground was maintainable.

Consequently, this revision petition succeeds and is allowed. The impugned order is set aside and the objection petition filed by the tenant is dismissed with costs. The parties have been directed to appear before the executing Court on January 31, 1989 for further proceedings. The executing Court will expedite the execution proceedings as the tenant has already allowed two years to pass by filing frivolous objections to avoid the vacation of the demised premises.