Rajeev Kumar Sharma vs Additional Civil Judge J.D. and Others

Hon''ble Shashi Kant Gupta, J.—The petitioner is a landlord of the disputed shop. A suit for arrears of rent and ejectment was filed by the petitioner against the respondent nos. 3 and 4, which was decreed exparte on 03.04.2008. On the basis of said decree, the petitioner filed Execution Case No. 06 of 2008, which is pending before the Execution Court. The respondent nos. 3 and 4 filed an application under Order 9, Rule 13 C.P.C. for setting aside the ex-parte decree, however said application was dismissed by the Trial Court vide Order dated 10.05.2010 and the Appeal filed against the same was also dismissed vide Order dated 21.10.2010. Thereafter, the respondent nos. 3 and 4 approached this Court by way of filing Civil Misc. Writ Petition No. 65747 of 2010 and this Court also dismissed the said Writ Petition vide Order dated 08.11.2010 and the matter attained finality.

The execution proceeding is pending in the Lower Court since 03.05.2010. It appears that an Application under Order 21, Rule 97 C.P.C. had been moved on 19.11.2010 on the basis of the alleged agreement dated 10.11.2010, which is said to be executed by the Landlord/Decree Holder in favour of the Respondent No. 2 and the concerned Court stayed the execution proceedings by Order dated 22.02.2011.

Feeling aggrieved and dissatisfied with the said order, the petitioner filed S.C.C. Revision No. 16 of 2011, which was dismissed on 26.08.2011 by the Revisional Court. Hence the present writ petition.

Learned counsel for the petitioner has submitted that it is clear from the decree dated 03.04.2008 that the Decree has not yet been satisfied and till date the possession of the disputed shop has not been delivered to the petitioner, as such, there is no question of entering into any tenancy agreement with the Respondent No. 2. It is further submitted that forged rent agreement has been set up by the Respondent No. 2 at the behest of respondent nos. 3 and 4 in order to create obstacles in the execution proceedings, which is nothing but an abuse of the process of law. It is further submitted that there was no occasion to him to execute any rent agreement in favour of the respondent no. 2, particularly when the execution proceedings are still going on and the possession has not been delivered to him. It is further submitted that the court below has illegally stayed the execution proceedings.

In support of his contention, learned counsel for the petitioner has placed reliance upon the decision of the Supreme Court in the case of Atma Ram Builders P. Ltd. Vs. A.K. Tuli and Others, . For ready reference, the relevant paragraph nos. 4, 8 and 11 of the aforementioned decision are quoted as under:

It is deeply regrettable that in our country often litigations between the landlord and tenant are fought up to the stage of the Supreme Court and when the tenant loses in this Court then he starts a second innings through someone claiming to be a co-tenant or as a sub-tenant or in some other capacity and in the second round of litigation the matter remains pending for years and the landlord cannot get possession despite the order of this Court The time has come that this malpractice must now be stopped effectively.

In this case, the order of this Court dated 06th October, 2010 has been totally flouted. It appears that the alleged sub-tenant in the execution proceedings raised an objection which was rejected on 01st April, 2011 against which an appeal was filed to the Additional District Judge Archana Sinha who by a detailed order dated 23rd April, 2011, has granted stay of the warrant of possession.

In this case, the contemnor Archana Sinha had no business to pass the order dated 23rd April, 2011 and it is hereby quashed as totally void. We further direct the Hon''ble Chief Justice of the Delhi High Court to enquire into the matter and take such disciplinary action against Archana Sinha, Additional District Judge, as the High Court deems fit. Let a copy of this order be sent forthwith to the Hon''ble the Chief Justice of the Delhi High Court for appropriate orders on the administrative side against Archana Sinha.

Learned counsel for the petitioner in support of his contention has further referred to the decision of Karnataka High Court in the case of Ramchandra Vs. Kempamma and others, AIR 2003 SC 251, wherein inter-alia it has been held as follows:

It is not in dispute that a third party who is claiming a right in respect of a property involved in the execution and that who is not claiming through a judgment-debtor can maintain an application and requests the Court to adjudicate his application in accordance with the provisions of Order 21, Rules 97 and 98 of CPC treating the same as a regular suit. From this, it is clear that obstructions can be made only by a stranger to the decree and that who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. As a matter of fact, he is also entitled to agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order 21, Rule 99 of the CPC. Order 21, Rule 97 deals with the stage which is prior to the actual execution of the decree for possession. "Therefore, whether a person claiming under the decree-holder can invoke the provisions of Order 21 to retain his possession or to resist the execution?" A decree-holder who has obtained the decree seeking possession from the judgment-debtor can apply for execution and request the Court to issue delivery warrant. In the said process, only a stranger to the decree and that, who is not claiming right through judgment-debtor can make an application. But in the instant case, petitioner is claiming right under the decree-holder as a lessee. Therefore, the application filed by the petitioner could not have been considered by the Court as he is claiming through decree-holder and that his remedy is elsewhere and not before the executing Court by invoking the provisions of Order 21, Rule 97 of the CPC. No doubt, petitioner herein is also claiming an independent right but not as a stranger to the decree-holder, but he is seeking adjudication of his claim as tenant of the decree-holder. Therefore, if the decree-holder is intending to dispossess the petitioner, petitioner cannot approach the executing Court under Order 21, Rule 97 of the CPC, but his remedy is elsewhere. Since Order 21, Rule 97 is applicable to the person who claims an independent right not either under the judgment-debtor or decree-holder, the petitioner cannot invoke the provisions of Order 21, Rule 97 of CPC.

Keeping in view the facts and circumstances of the case and submissions advanced by the learned counsel for the petitioner, the matter requires consideration.

Issue notice to the Respondent Nos. 1 to 4 to file Counter affidavit within three weeks.

List the matter on 20th December, 2011 before the regular court.

The matter shall not be treated as tied up or part heard with this Bench.

Until further orders of this Court, the Orders dated 22.02.2011 and 26.08.2011 (Annexure 13 & 15) shall remain stayed and the Executing Court is directed to proceed with the matter.