Prem Kishore Sinha vs Chanda Devi and others

Dilip Gupta, J.

This petition has been filed for setting aside the order dated 9th April, 2008 passed by the learned District Judge, Allahabad in Civil Revision No. 96 of 2008 that had been filed by the respondent No. 1 Chanda Devi wife of late Munnu Lal Gupta for setting aside the orders dated 12th March, 2008 and 27th February, 2008 passed by the learned Judge, Small Causes Courts, Allahabad in Execution Case No. 15 of 1997.

The records of the writ petition indicate that SCC Suit No. 277 of 1997 had been filed by Munnu Lal Gupta against Sri Jagannath Singh and Sri Komal Chand who have been arrayed as respondent Nos. 2 and 3 in the present petition for ejectment and recovery of arrears of rent. Relief (A) claimed in the suit is as follows:

"(A). That a decree of ejectment of the defendants from the portion of House No. 126, Fatehpur Bichhuwa, Allahabad consisting of 2 rooms, one box room, varandah, kitchen, latrine, bath room, court yard on the ground floor and 1 room, 2 varandah and an open chhat with Balcony on the 1st floor, be passed in favour of the plaintiff."

The said suit was partly decreed on 28th October, 1978 for arrears of rent but the relief for ejectment was denied. The plaintifflandlord filed revision which was allowed by the judgment and order dated 11th August, 1980 and the suit was also decreed for ejectment. The plaintifflandlord then filed Execution Case No. 15 of 1997. The possession certificate dated 13th October, 1997 indicates that the possession of some portion was given to the landlord. The report of the Amin dated 4th November, 1997, however, mentions that possession of some portion of House No. 126 occupied by the petitioner could not be given. Subsequently, the judgment debtor moved an application on 12th March, 2008 that the possession of the remaining portion may also be handed over. This application was rejected by the Executing Court by the order dated 12th March, 2008. The decree holder filed a Revision which was allowed by the judgment and order dated 9th April, 2008. The order dated 12th March, 2008 was set aside and a direction was issued to the Executing Court to issue ''Parwana'' to the Court Amin for execution of the remaining portion of the decree.

It is this order dated 9th April, 2008 that has been impugned in the present petition.

Learned Counsel for the petitioner vehemently argued that the portion occupied by him was not the subject matter of the decree. He submitted that the possession of the entire portion covered by Relief (A) was handed over to the decree holder.

Sri Vivek Prasad Mathur, learned Counsel appearing for the respondentdecree holder, however, vehemently urged that the petitioner was never a tenant and that the petitioner has come into possession of the premises covered by the decree as an unauthorised occupant and is liable to be evicted on the basis of the decree.

I have carefully considered the submissions advanced by the learned Counsel for the parties and have perused the affidavits filed by them today in Court.

In the order dated 9th April, 2008, there is no specific finding recorded by the Revisional Court that the petitioner is in possession of any portion covered by Relief (A) of SCC Suit No. 277 of 1977. The matter is, therefore, required to be remitted back to the Executing Court to pass an appropriate order. Since the matter is old, it is expected that the Executing Court shall decide the application expeditiously, preferably within two month from the date a certified copy of this order is placed by either of the parties before the Executing Court.

The order dated 9th April, 2008 passed by the Revisional Court in so far as it relates to the order dated 12th March, 2008, is set aside. The petition is allowed to the extent indicated above.