Sh. Harbans Singh vs Sh. Harbhajan Singh and Another

D.V. Sehgal, J.—This judgment will dispose of C. R. Nos. 1847 and 2995 of 1986 as both of them arise out of an order dated 7-5-1984 passed by the learned Sub Judge Ist Class, Amritsar, while deciding an application u/s s 47/151 read with Order 21, R. 97 to 103 of the Code of Civil Procedure, filed by Harbans Singh, judgment-debtor, during the course of execution of an order of ejectment dated 16-7-1972 passed by the Rent Controller, Amritsar, against him and in favour of Harbhajan Singh, decree-holder.

Against the order of the executing court mentioned above, Harbhajan Singh filed an appeal which was decided by the learned Additional District Judge, Amritsar. vide judgment dated 5-3-1986. The appeal was accepted, the order of the executing court was set aside and the objection petition of Harbans Singh was dismissed. C R. No. 1847/1986 has, thus, been filed by Harbans Singh in this Court. Besides assailing the judgment of the learned Additional District Judge on merits, a contention was raised to the effect that the order of the executing court dated 7-5-1984 allowing the objection petition of Harbans Singh, judgment-debtor, was not a decree and as such, no appeal against the same was maintainable. I find that this contention raised on behalf of Harbans Singh is valid. In view of the amended provisions of Section 2(2) of the Code of Civil Procedure, as amended by the CPC (Amendment Act), 1976, an order allowing or dismissing an application u/s 47 of the C. P. C. is no longer a decree. Though the objection application filed by Harbans Singh, Petitioner, also invoked the provisions of Order 21 R. 93 to 103, C. P. C., no application by a judgment-debtor under any of these provisions is maintainable. As such, the order passed by the executing court could not have the force of a decree under Order 21 R. 103 ibid. The order was therefore, not appealable u/s 96, C. P. C. The judgment dated 5-3-1986 of the learned Additional District Judge, Amritsar, allowing the appeal is, therefore, without jurisdiction. C.R. No. 1847/86 is, consequently, allowed on this ground and the judgment of the learned Additional District Judge, Amritsar dated 5-3-1986 is set aside.

Now coming to C. R. No. 2995/1986 it may be mentioned that the same was filed by Harbhajan Singh, decree-holder, after the objection with regard to the jurisdiction of the learned Additional District Judge to entertain the appeal, accept the same and set aside the order of the exacuting court was taken in C. R. No. 1847/86, and it was realised by him that this objection was likely to prevail and the judgment of the Additional District Judge was without jurisdiction. Along with this revision petition. Civil Misc. No. 4991-CII/1986 was filed under Sections 5 and 14 of the Limitation Act for condonation of delay in filing the revision petition against the order dated 7-5-1984. This application was allowed by me after hearing the learned Counsel for both, the parties, vide order dated 14-11-1986, and the delay in filing the revision petition was condoned.

Now coming to the merits of this revision petition I find that the same has to be allowed. The learned executing court has committed a serious error in exercise of its jurisdiction in allowing the objection petition of Harbans Singh, judgment-debtor It has to be noted that Property No. 744/XIV was owned by one Nihal Chand who sold the same to Harbhajan Singh, Petitioner. The Petitioner filed an ejectment application u/s 13 of the East Punjab Urban Rent Restriction Act wherein he arrayed Sohan Singh and Harbans Singh as Respondents. His allegation was that he was the landlord qua the property in dispute and Sohan Singh was his tenant; that Sohan Singh had sublet the same to Harbans Singh, Respondent, without his written consent. The Rent Controller vide order dated 16-7-1972 allowed the application and directed the ejectment of Sohan Singh and Harbans Singh, Respondents, on the ground of subletting. It may be noted here that the plea taken by Harbans Singh in the ejectment proceedings was that he was a direct tenant under Harbhajan Singh which was, however, repelled. No appeal against this order of ejectment was filed by Harbans Singh and this order became final. He, however, filed a civil suit in this regard which was dismissed on 5-10-1976. He later filed yet another suit which was dismissed in default under Order 9, R. 8 of the CPC It was then that in the proceedings for executing the order of ejectment, he filed the instant objection petition asserting that he had purchased the property in dispute from the State Government.

I am of the view that the learned executing court was wrong in allowing this objection petition for the reason that no such plea could be taken in execution proceedings. Harbhajan Singh, Petitioner, had secured order of ejectment. He was held to be the landlord qua the property in dispute and Harbans Singh, Respondent was held to be a subtenant under Sohan Singh who had taken the property on lease from the Petitioner. By setting up his own title in the property in question he was trying to negate the effect of the order of ejectment. The executing court could not go behind the order of ejectment and hold that the Respondent was the owner of the property in dispute. I have, therefore, no doubt in my mind that the order dated 7-5-1984 passed by the learned executing court was without jurisdiction.

In all fairness to the learned Counsel for Harbans Singh, Respondent, it may be mentioned that he placed reliance on the Supreme Court judgment in Mrs. Dhanlaxmi G. Shah v. Miss Sushila Shiv Prasad Mosurekir 1980 (1) R. C. R. 106. He contended that where the landlord has lost title in the property he cannot seek eviction of the tenants therein in execution of a decree secured by him against them. On going through the facts of Dhanlaxmi G. Shah''s case (supra) I find that it is clearly distinguishable. In that case a suit was filed on behalf of the tenants who claimed that the property in dispute had since been sold by the earlier owner who had secured a decree for possession, and the title vested in the purchaser who was also impleaded as a Defendant to the suit. The sale of the property was proved on record and the purchaser did not contest the suit. It was in these circumstances that it was held that the decree in favour of the previous owner could not be executed by him subsequent to the sale of the property by him. It was not a case where decree was held inexecutable in execution proceedings. The learned Counsel then relied on Darbara Singh v. The Union of India (1972) 74 P. L. R. 381. His contention is that the Managing Officer, Rehabilitation Deoartment, had passed an order selling the property in dispute to the Respondent. This order has since become final and in view of the provisions of Sections 27 and 36 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954, the order of the Managing Officer cannot be assailed in the Civil Court. This argument also does not hold water for the reason that the order of the Managing Officer has not been assailed by the decree-holder/Petitioner. On the other hand, the same is being used by the Respondent as an instrument for obstructing execution of the order of ejectment against him which has since become final.

The result of the above discussion is that C. R. No. 2995/1986 is allowed, order dated 7-5-1984 of the learned Sub Judge 1st Class, Amritsar is set aside and the objection petition of the Respondent is dismissed. The executing court shall now proceed with the execution of the order of ejectment passed by the Rent Controller in favour of the Petitioner. There shall, however, be no order as to costs in either of the two revision petitions.