Laxman Singh vs Shri Shujabad Sabha (Regd.) Gwalior

The present petition has been filed challenging the order dated 05.02.2020 (Annexure P-1) passed in Execution Proceeding No. 20-A/2017 whereby the application/objection filed by the petitioner under 12 (6) (b) (i) of the M.P. Accommodation Control Act, 1961 has been rejected.

It is argued that the respondent has filed a civil suit for eviction for bonafide requirement before the 8th Civil Judge Class-II, Gwalior which was registered as Civil Suit No.24-A/2013 and which was decreed by judgment dated 29.09.2015 and the following decree was passed which as under:-

"1. प्रतिवादी को आदेशित किया जाता है कि वह निर्णय व डिक्री दिनांक से दो माह की अवधि के भीतर विवादित दुकान जो म्यूनिसिपल क्रमांक-34/560 नई सड़क लश्कर ग्वालियर में स्थित है एवं शूजाबाद भवन के नाम से विख्यात है जिसे वादपत्र के साथ संलग्न नक्शे में दर्शाया गया है, का रिक्त आधिपत्य वादी को प्रदान करे।

प्रतिवादी को आदेशित किया जाता है कि विवादित स्थान का वाद संस्थित दिनांक से रिक्त आधिपत्य प्रदान किये जाने तक वादी को 300/- रूपये प्रतिमाह की दर से भाड़ा अदा करे।

प्रतिवादी अपना एवं वादी का वाद-व्यय वहन करेगा।

वादपत्र के साथ संलग्न नक्शा आज्ञप्ति का भाग रहेगा।

अधिवक्ता शुल्क प्रमाणित होने पर अथवा अनुसची अनुसार जो न्यून हो, देय होगी।''

It is submitted that the aforesaid decree was put to challenge by filing an appeal which was registered before the Additional District Judge which was registered as Civil appeal No.21/2016 and which was finally heard and decided by the judgment and decree dated 29.09.2015 affirming the judgment and decree passed by the trial Court. Thereafter, a second appeal was preferred before the Hon'ble Court which was registered as S.A.No.202/2017 and this Hon'ble Court vide its judgment and decree dated 29.01.2019 was pleased to dismiss the second appeal confirming the judgment and decree which was passed by the court below. It is alleged that the application was filed on the ground that the decree passed by the trial Court is not executable owing to a specific restriction which has been imposed under Section 12 (6) (b) (i) of the M.P. Accommodation Control Act, 1961 which provides that the possession cannot be handed over unless the condition mentioned in the aforesaid section is fulfilled. The petitioner has filed an application raising the aforesaid objection before the Executing Court which has been turned down by the Executing Court by the impugned order holding that the Court is bound by the decree and is bound to execute the same.

Counsel for the petitioner has drawn attention of this Court to Section 12 (6) (b) (i) of the Act, 1961 and has argued that in pursuance to the aforesaid provision the decree holder is required to comply with the requirement and on payment of double of standard rent only then the possession can be handed over to the respondent by landlord is required to pay the aforesaid to the tenant by way of compensation in terms of Section 12 6 (b) (i) of the M.P. Accommodation Control Act. It is argued that the Executing Court has committed grave error in rejecting the application and prayed for setting aside the impugned order with a further direction to the Executing Court to direct for payment of the aforesaid rent in terms of Section 12 (6) (b) (i) of the MP Accommodation Control Act, 1961.

Learned counsel for the petitioner and perused the record.

From the perusal of the record, it is seen that the civil suit which was filed by the respondent was decreed by the judgment and decree dated 29.09.2015. The first appeal was decided on 20.02.2017 and in pursuance to the impugned judgment and decree dated the defendant/tenant was required to hand over the vacant possession of the shop in question to the plaintiff/respondent. It was further directed to pay a rent Rs.300/- per month till the possession is handed over. The aforesaid judgment and decree was put to challenge by filing of the first appeal which was registered as F.A.No.21/2016 which was finally heard and dismissed by the Appellate Court vide judgment and decree dated 20.02.2017 and the judgment and decree passed by the trial court was affirmed. Thereafter, a second appeal was preferred before this Hon'ble Court and the second appeal was dismissed vide judgment and decree dated 29.01.2019 being S.A.No.200/2017.

It is seen from the record that the petitioner has never raised the aforesaid objections before the First Appellate Court as well as Second Appellate Court to the effect that decree is incorrect and cannot be executed. The judgment and decree passed by the trial Court has already attained finality. It is settled law that the Executive Court is bound by decree and in no condition can go beyond the decree.

The Supreme Court in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, reported in 1970 (1) SCC 670 wherein it has held that the executing Court cannot go beyond the decree. It has been held that the executing Court must take the decree according to its tenor. It was held that the executing Court cannot entertain any objection that the decree was incorrect in law or in fact. It was held that the decree, even if erroneous, is binding between the parties.

The Hon'ble Supreme Court in the matter of TCI Finance Ltd. Vs. Calcutta Medical Centre Ltd. & Another, reported in AIR 2005 SC 3654 = 2005 (8) SCC 41 has held that the executing court cannot go beyond the decree. It is a settled position in law which flows from Section 38 of the CPC, except when the decree is a nullity or is without jurisdiction.

The Hon'ble Supreme Court in the case of Shivshankar Gurgar (Laxman Singh Vs. Shri Shujabad Sabha (Regd.) Gwalior Vs. Dilip, reported in AIR 2014 SC 1182 = 2014 (2) SCC 465, considering the case of Deepa Bhargava vs. Mahesh Bhargava, reported in 2009 (2) SCC 294 has held that executing court can neither go beyond the decree nor it has jurisdiction to modify the same.

In such circumstances and considering the law laid down by the Hon'ble Supreme Court no illegality is being committed by the learned Executing Court. Even otherwise this court is exercising jurisdiction under Article 226 of the Constitution of India having limited scope of interference as has been considered and held by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil (2010) 8 SCC 329, and has contended that the following principles on the exercise of High Court's jurisdiction under Article 227 of the Constitution may be formulated:

"(a) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed above.

(b) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court.

(c). In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.".

In the aforesaid facts and circumstances of the case, the order passed by the Executing Court is just and proper and the same does not call for any interference. According the miscellaneous petition sans merits and is hereby dismissed.