Mahaveer Ucheha Prathmik Vidhyalaya Sardar Sahar vs Babu Lal

R.R. Yadav, J.—This revision which arises out of an execution proceedings following upon a decree in a suit for ejectment has a chequered history. The non-petitioner land lord decree holder Babu Lal a suit for ejectment under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act No. 17 of 1950) on 26.2.1976 on the ground of default in payment of rent as well as on the ground that the premises in dispute was required reasonably and bona-idly by him and members of his family In the aforesaid eviction suit filed by plaintiff land lord decree holder the defendant was described as "Shree Mahaveer Uchcha Prathmik Vidhyalaya Sardar Sahar through Mantri Mahodaya Shri Sanwal Ram S/o Shri Chandi Prasad resident of Sardarsahar". During the pendency of the aforesaid suit a compromise was entered into between the land lord decree holder and defendant before the learned trial court and a compromise decree was passed on 11.11.1980.

It is revealed from perusal of the record that although the tenant Sanwal Ram submitted to the compromise decree dated 11.11.1930 yet his son Mahaveer filed an appeal u/s 96 CPC against the compromise decree dated 11.11.1980 alleging himself to be Secretary of Mahaveer Uchcha Prathmik Vidhyalaya, Sardar Sahar. The learned first appellate court on 2.8.1985 set-aside the compromise decree passed by the learned trial court and remanded the case back to it with a direction to examine and reconsider the validity of the compromise decree alter applying its mind to the mandatory provisions contemplated under Sec. 13 of Act No. 17 of 1950. The learned first appellate court also made it clear that the parties were not required to adduce evidence.

When the record-was received by the learned trial court with the aforesaid direction, pursuant to the remand order dated 2.8.85, after analytical discussion, it arrived at a conclusion that the compromise entered in between the plaintiff land lord decree holder and defendant was lawful and valid within the meaning of Sec. 13 of Act No. 17 of 1950 hence again passed a decree for ejectment on 7.2.1987.

It is revealed that again the tenant defendant Sanwal Ram submitted to the decree dated 7.2.1987 passed by the learned trial court but his son Mahaveer has filed an appeal under Sec 96 CPC against the judgment and decree dated 7.2.1987 alleging himself to be Secretary of the School In appeal the learned first appellate court thoroughly re-examined the evidence available on record and affirmed the finding of the learned trial court to the effect that the premises was let out to Sanwal Ram by late Smt. Hukma Devi in the year 1957 upon which the tenant had subsequently established a School namely Mahaveer Uchcha Vidhyalaya for earning of his livelihood. While coming to the above conclusion the learned first appellate court also examined the validity of the compromise entered into between the decree-holder land lord-plaintiff and his tenant defendant Sanwal Ram. The learned first appellate court was satisfied about the existence of grounds for ejectment under clause (a) and clause (h) of sub-sec. (1) of Sec. 13 of Act No. 17 of 1950 therefore it affirmed the judgment and decree passed by the learned trial court on 72.J987.

It is further borne out from perusal of the record that although Mahaveer. the son of the tenant Sanwal Ram submitted to the decree passed by the learned first appellate court yet his son Mahendra Kumar, grand son of Sanwal Rain, (who is the present revisionist) filed a second appeal alleging himself to be Secretary of Mahaveer Uchcha Prathmik Vidliyaalaya, Sardar Sahar. However, the second appeal was also dismissed by this Court on 24.5.1996 holding that neither Mahaveer nor his son Maltendra Kumar, the present revisionist had any locus standi to file the appeal against the compromise decree dated 11.11.1980. Both of them were not proved to the Secretary of the Mahaveer Uchcha Prathamik Vidhayalay. Sardar Sahar,

Dissatisfied with the dismissal of the second appeal on 24.5.1996, the present revisionist filed a Special Leave to Appeal before Hon''ble Supreme Court but it was also dismissed on 12.7.96 affirming the judgment rendered by this Court in second appeal.

When the execution proceedings were initiated by the land lord decree holder non petitioner for delivery of possession on the basis of compromise decree dated 11.11 1980 the present revisionist refused to vacate the premises in dispute on the ground that the decree is executable against judgment debtor alone and the revisionist moved an objection under Sec. 47 CPC which was rejected by the learned executing court on 22.7.1996. It is pertinent to mention here that against the rejection of his objection under Sec. 47 CPC on 22.7.1996 the revisionist has not filed any revision therefore the order dated 22.7,1996 has attained finality.

Undaunted with rejection of his objection under Sec. 47 CPC on 22.7.1996 the revisionist filed second objection under Sec. 47 CPC opposing execution of decree on the ground that it is not executable against the School which too was dismissed by executing court on 17.8.19965 against which the present revision has been found.

On 18.3.1999 with the consent of the Learned Counsel for the parties the present revision was ordered to be listed for final disposal at admission stage. Arguments were heard on 13.7.99 which remained inconclusive. The record of S.B.C. Second Appeal No. 155/95, which was decided between the same parties on 24.5.1996, was ordered to be tagged along with the revision. The Learned Counsel appearing on both sides were directed to point out the relevant provisions of law under which a decree upheld upto the Supreme Court can be made inexecutable or executable against the revisionist who has filed second appeal before this Court and Special Leave to Appeal before Hon''ble Supreme Court. The Learned Counsel for the revisionist Mr. S.N. Sharma filed the order passed by Apex Court on 12.7.1996 dismissing the Special Leave to Appeal which was ordered to be placed on the record of this revision. From the perusal of memo of Second Appeal No. 155/1995 and the concession made by the Learned Counsel for the revisionist Mr. Sharma indisputably the Second Appeal and the Special leave to Appeal both were filed by the present revisionist. After dismissal of the Second Appeal by this Court on 24.5.1996 a decree is prepared against the present revisionist yet it is being claimed that the fierce is not executable against the revisionist School However, instead of pointing out the relevant provisions under which the present decree is alleged to be not executable against the present revisionist, the Learned Counsel on both sides had filed their written arguments which are made part of the record.

In the written arguments submitted by the Learned Counsel for the parties nowhere the relevant provisions are disclosed under which the present decree as alleged on behalf of pie revisionist cannot be made executable against the School. In view of the fact that the present controversy centers-round the question whether the present decree, which has been upheld upto the Supreme court, is executable against the present revisionist or not, I have perused thoroughly the relevant case law on the subject and found that in the present facts and circumstances of the case the mandatory provisions envisaged under sub-rule 91) of Rules 35 and 36 of Order XXICPC are applicable. Sub-rule (1) of Rule 35 and Rules 36 of Order XXI CPC are reproduced herein below for ready reference:-

Decree for immovable property.-(1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.

(2) x x x x

(3) x x x x

Decree for delivery of immovable property when in occupancy of tenant. -Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property.

Having heard the Learned Counsel for the parties and having perused their written arguments I am of the view that paragraphs No. 1 to 11 of the written arguments submitted by the Learned Counsel for the revisionist relate to points which tantamount going behind the decree which is not permissible in execution proceedings and the learned Executing court has committed no jurisdictional error in rejecting these arguments by its impugned order holding that going behind a decree is impermissible in execution proceedings. However, the argument raised in paragraph, 12 of the written arguments submitted on behalf of the revisionist deserves attention of this Court. Paragraph 12 reads thus-

That, now decree holder wants to execute the decree against the school showing school as judgment debtor in the execution application, when it has been held by this Hon. Court that Sanwal Ram is the tenant, the decree can only be executed against Sanwal Ram and not against school.

It is easily deducible that through the aforesaid paragraph of his written argument the revisionist intends to contend that the School is not bound by the present decree as the expressions ''any person bound by the decree'' used under O. 35 R, 1 CPC are synonymous with judgment debtor alone and these words do not include within its fold any other person who is not a judgment debtor. On the other hand with equal vehemence it is contended on behalf of the non-petitioner decree holder that the Order impugned passed by the learned Executing court is legally respect and it does, pot require interference under amended Section U5 CPC. In support of his aforesaid contention he has placed reliance on some reported decisions in his written arguments.

From the narration of the aforesaid facts and circumstances of the case the controversy in the present case narrowed down to a single question whether the present ^revisionist can be treated to be bound by the compromise decree, which has been upheld upto the Hon''ble Supreme Court, or not. In my humble opinion the answer to the aforesaid question lies in correct interpretation of the expressions ''any person bound by the decree'' used under sub-rule (1) of Rule 35''of Older XXI CPC.

An identical question arose before Division Bench of Calcutta High Court in the case of Sheikh Yusuf v. Jyotish Chandra Banerjee and others reported in AIR 1932 Calcutta 24! wherein it was contended on behalf of the petitioner that the words "any person bound by the decree'' are synonymous with ''judgment-debtor''. After referring to the word judgment-debtor'' as defined under sub-sec. (2) of Sec. 2 CPC and the use of the expressions ''any person bound by the decree'' under sub-rule (1) of Rules 35 of Order XXI CPC, the learned Judges constituting the Division Bench arrived at a. conclusion that the expression ''any person bound by the decree'' includes the "judgment-debtor'' as well as any person who may be held to be bound by the decree.

The aforesaid interpretation of the expression ''any person bound by the decree'' again came up for consideration before a learned Single Judge of this Court in case of Hansraj v. Champalal Gopikishan Sabu Trust and Others reported in RLW 1960 429 wherein the learned Single Judge after review of various case laws on the subject held that the expression ''any person bound by the decree'' is not synonymous with judgment-debtor'' alone but it has a wider connotation and is an elastic expression and the answer to the question whether a person can be bound by the decree must be given on a consideration of the facts and circumstances of each case, and on a consideration of the general law, including the provisions of Sec. 52 T.P. Act and O. XXI, R. 102 CPC governing the rights and liabilities of the persons sought to be bound. Then the learned Single Judge in paragraph 18 of his judgment given guidelines in which cases other persons can be treated to be bound by the decree. In these guidelines he ruled that even a person who is not a party in a proceeding be bound by a decree. It is to be noticed from reading of the judgment that guidelines given in the case of Hans Raj (supra) are only illustrative and not exhaustive.

I gracefully concur with the view taken by; the learned Single Judge of this Court in the case of Hansraj (supra) and the view taken by the learned Judges constituting Division Bench in the case of Sheikh Yusuf (supra).

In my humble opinion if the Parliament intended to mean ''judgment-debtor'' alma by using the expressions ''any person bound by the decree'' then in stead of using the expressions ''any person bound by the decree'' under O. XXI Rule 35(1) of CPC it ought to have usa4''judgment-debtor''. It is not possible for this Court to presume that the Parliament was short of words, therefore, instead of using ''judgment-debtor'' as defined under sub-sec. (10) of Sec''. 2 CPC it has used the expressions ''any person bound by the decree'' under O. XXI Rule 35(1) CPC. In my considered opinion in order to meet such contingency as has arisen in the present case the Parliament has deliberately used the expressions ''any person bound by the decree'' and an argument contrary to it is not acceptable.

With the aforesaid introspection it is held that the compromise decree passed against defendant, who was arrayed in the plaint as Secretary of Shree Mahaveer Uchcha Prathmik Vidhyalay Sardar Sahar though its Mantn. Mahodaya Sanwal Ram S/o Shri Chandi Prasad r/o Sardar Sahar. is binding on the present revisionist inasmuch as the interest of the tenant Sanwal Ram ceased to exist when the compromise decree was passed on 11.11.1980. Indisputably the premises in dispute was let out to tenant Sanwal Ram when the juristic personality of School was not born but after established the present School to earn his livelihood is affirmed upto Hon''ble Supreme Court, therefore, now it is too late for the revisionist to refuse to vacate the premises in dispute without claiming any independent right and interest other than induction of possession over the disputed premises by tenant Samval Ram Since the possession of the School over the premises in dispute originates and depends on the tenancy rights of Sanwal Ram which stood extinguished after passing of the compromise decree on 11.11.) 980. the present revisionist has no right independent of lessee''s right to continue in possession over the disputed premises which stood extinguished on 11.11.1980. It goes without saying that the present revisionist who is claiming to derive interest from tenant Sanwal Ram cannot be permitted to contended that the school, which was inducted to contend that the School, which was inducted in possession by Sanwal Ram. is not bound by the compromise decree dated 111 1 1980. The aforesaid contention raised on behalf of the revisionist is hopelessly devoid of merit and it is hereby repelled

From the oral arguments as well as from the written arguments submitted on behalf of the revisionist it is no where alleged that the present revisionist intends to assert any independent right or interest in School but the School is coming in possession over the disputed premises only on the basis of tenancy rights of Sanwal Ram which had been determined upto the Apex Court holding that Sanwal Ram was the tenant of the disputed premises and compromise decree dated 11.11.1980 entered into between land lord decree holder and tenant Sanwal Ram is legally valid. Thus. I have no hesitation to hold that after passing of compromise decree dated 11.11.1980 against Sanwal Ram his interest as a tenant extinguished and the School established by him to earn his livelihood, which was indisputably not born on the date when the premises WJS let out to Sanwal Ram by landlord, has no independent right or interest to refuse to vacate the peruses in dispute. As in the present case the lessor''s right over disputed premises has been determined upto Supreme Court holding the validity of compromise decree dated 11.11.1980 it follows as a necessary consequence that the School has no longer any independent right to continue in possession over the disputed premises merely because it was inducted in possession over the disputed premises by tenant Sanwal Ram.

There is another aspect of the matter which should not be overlooked. It is evident from perusal of the record that the first objection filed by the present revisionist under Sec. 47 CPC was rejected by the Executing Court on 22.7.1996. Since the order dated 22.7.96 was not challenged by the revisionist the aforesaid order dated 22.7.1996 has attained finality and the revisionist is not entitled to file another objection under Sec. 47 CPC on the principle of constructive res judicata.

As already stated in preceding paragraph of this order that on 13.7.1999 this revision was ordered to be listed along with the record of the second appeal which was decided by this Court on 24.5.1996 and against which a Special Leave to Appeal was filed by the present revisionist which too was dismissed on 12.7.96. A close scrutiny of the decree prepared in pursuance of the judgment in second appeal dated 24.5.96 reveals that the present revisionist is shown as appellant in second appeal and the same counsel who is representing the present revisionist is shown as counsel for the appellant in decree sheet. Since the present revisionist who was appellant in the second appeal was non suited in the second appeal against which he preferred a Special Leave to Appeal which too was dismissed he is not entitled to claim that the compromise decree dated 11.11.1980 is not executable against In on the principle of merger theory extendable in the present case. It is held that the decree passed by courts below merged into the decree passed in second appeal where the present revisionist is shown as appellant protecting the interest of the School as its Secretary in the decree hence on this ground alone the decree is executable against the School.

I am also of the view that filing of the present revision is a desperate attempt of the revisionist to put the cart before the horse in execution proceedings obstructing delivery of possession to the decree holder. The compromise decree dated 11.11.1980 is binding upon the School within the meaning of sub-rule (1) of Rule 35 and Rule 36 of Order XXI of CPC and an argument contrary to it is not acceptable. The suit was filed long back in the year 1976. The decree holder is being denied his legitimate claim of delivery of possession without arty fault on his part flowing from the compromise decree passed on 11.11.1980 on some pretext or the other of the revisionist, therefore, this revision is liable to be dismissed with special cost which is assessed to Rs. 10,000/-.

The revision petition consequently fails and it is hereby dismissed with special costs of Rs. 10,000/-.