Smt. Chandra Kanta Sharma vs Triloki Nath Kakkad and Subhash Jaiswal

A.K. Shrivastava, J.—By this petition under Article 227 of the Constitution of India, the petitioner is challenging the order dated 23.7.2013 (Annexure P/11) passed by XIII Civil Judge Class I Jabalpur in Execution Case No. 247-A/1992, whereby the objection of petitioner under Order 21 Rule 16 read with Section 146 and 151 of CPC has been rejected. During the course of arguments, Shri Girish Shrivastava, learned counsel for the petitioner submits that indeed the objection is u/s 47 of CPC and incorrect provisions are quoted in the application. On bare perusal of the application/objection dated 15.5.2013 (Annexure P/10) of the petitioner, this Court finds that inter alia in para 6 it has been averred that the judgment-debtor/respondent No. 2 had already delivered possession of the accommodation in question on 14.5.2013 with the consent of decree-holder Triloki Nath Kakkad (respondent No. 1) to the present petitioner. However, despite it the objection Annexure P/10 of the petitioner has been rejected. The contention of learned counsel is that indeed the execution proceedings should have been closed on account of full and final satisfaction of the decree. When it was asked repeatedly to the learned counsel for the petitioner, it is submitted that although there is an averment in para 6 of the aforesaid objection that the possession has been delivered by the judgment-debtor on 14.5.2013 and the first respondent/decree-holder also consented to it, but the document was not filed either in the Executing Court or before this Court, nor any such document was executed.

Further it has been contended by the learned counsel for the petitioner that the petitioner is the owner/landlord of the accommodation in question and the decree-holder/first respondent is her tenant. To substantiate his contention, learned counsel has placed heavy reliance on Annexure P/1 which is a lease deed dated 28.3.1969, however this lease deed is not a registered document although the lease period is 51 years. Be that as it may. This Court in Second Appeal No. 351/1995 (Subhash Jaiswal Vs. Trilokinath Kakkad) dismissed the second appeal on 28.9.2012. Learned counsel for the petitioner by inviting my attention to para 16 of the judgment of this Court wherein this Court has answered to question No. 4, has contended that although the lease deed which is an unregistered document but it was taken into account in the second appeal and it was held that the plaintiff/respondent No. 1 is not entitled to a decree of eviction u/s 12(1)(c) of the M.P. Accommodation Control Act, 1961 (in short ''the Act of 1961) and the decree passed on that count was set aside. However, the decree u/s 12(1)(a) of the Act of 1961 was affirmed. The further contention is that the petitioner is not only the landlord, but the owner of the shop in question and the decree-holder/respondent No. 1 is her tenant while respondent No. 2 Subhash Jaiswal/judgment-debtor is a sub-tenant inducted by the first respondent in the suit accommodation. Learned counsel submits that since the possession of the accommodation in question has already been delivered by both the respondents on 14.5.2013, therefore this petition be allowed by holding that the decree has been duly satisfied by closing the execution case.

Shri D.K. Dixit, learned counsel for the judgment-debtor/respondent No. 2 has submitted that he along with the first respondent No. 1/decree holder had already delivered the possession of the accommodation in question to the owner/landlord on 14.5.2013 and thus the decree has been fully satisfied and it should be closed.

Shri Sanjay Agrawal, learned counsel appearing for the intervener-Sudheer Chandra Datt (hereinafter referred to as ''the first intervener'') has filed intervention application (I.A. No. 11658/2013) and has also filed additional submissions on behalf of the first intervener in support of that intervention application. Learned counsel submits that the first intervener has filed an application under Order 21 Rule 97 of CPC before the learned Executing Court which has been dismissed by the said Court and against which an appeal has been filed before the appellate court which is still pending. However, he has fairly contended that no stay order has been passed by the appellate court in favour of the first intervener staying the execution of the decree. However, it has been submitted by learned counsel that first intervener is in possession of the suit property.

Shri Amitabh Gupta, learned counsel has filed intervention application (I.A. No. 11936/2013) on behalf of Alok Chansoria (hereinafter referred to as ''the second intervener'') and by inviting my attention to several documents filed along with the application has submitted that the second intervener is the great grandson of original owner Puttulal and the petitioner Smt. Chandra Kanta is also deriving the title from said Puttulal. Learned counsel submits that the second intervener has not yet filed any objection under Order 21 Rule 97 of CPC. However, his contention is that indeed none else except the second intervener is in possession of the accommodation in question.

On the other hand, Shri Ashish Shroti, learned counsel for respondent No. 1/decree-holder has submitted that the objection of the petitioner is frivolous and baseless and he wants to create hurdle so that the decree could not be executed. Learned counsel further submits that even if the petitioner is the owner/landlord of the accommodation in question and the decree-holder/respondent No. 1 is her tenant, unless and until by making a ground of eviction and proving it in a suit for eviction on the relationship of landlord and tenant envisaged u/s 12(1)(a) of the Act of 1961 and a decree is obtained, the petitioner cannot create any hindrance in getting the decree of eviction executed which was passed in his favour and which has been affirmed by the Supreme Court in SLP No. 10329/2013 by dismissing the SLP of second respondent. The Supreme Court gave six months time to vacate the suit premises upon filing usual undertaking in the Registry of the Supreme Court. Further it has been contended by him that if the possession of the suit accommodation is obtained pursuant to the decree of the civil court affirmed in second appeal and even by the Supreme Court, it will not prejudice the petitioner because a sub-tenant is being evicted.

Learned counsel for the decree-holder/respondent No. 1 further submits that it is factually incorrect to say that the possession has already been handed over to the petitioner on 14.5.2013. On these premised submissions, it has been prayed that this petition be dismissed.

Having heard learned counsel for the parties, I am of the view that this petition deserves to the dismissed.

The objection of the petitioner Annexure P/10 may be under Order 21 Rule 16 or u/s 146 and 151 of CPC or u/s 47 of CPC as stated by learned counsel for the petitioner, is based inter alia upon the averments made in para 6 in the said application. It would be condign to quote para 6 of the application in its entirety which reads thus:

That, thereafter the judgment debtor agreed to handover the possession of the accommodation to the applicant and as such she has received the possession of the accommodation from, the judgment debtor on 14.5.2013. The judgment debtor has handed over the possession of the accommodation to the applicant with the consent of the decree holder Shri Triloki Nath Kakkad.

It be noted that the matter was fought by respondents tooth and nail from Trial Court up to the Apex Court and, therefore in these facts and circumstances when the matter was fought up to the Apex Court, without executing any document this contention of petitioner cannot be accepted that she had obtained the possession on 14.5.2013 from the respondent. No such document was filed either in the Executing Court or before this Court. Hence, I am of the view that since there is no document on record in this regard and particularly when this fact is being seriously objected by the decree-holder/respondent No. 1 that he had given the possession of the accommodation in question to the petitioner along with the judgment-debtor on 14.5.2013, it cannot be said that possession has already been handed over to the petitioner.

The contention of learned counsel for the petitioner cannot be accepted for another reason that if the matter is visualized from this angle that the decree-holder and the judgment-debtor have fought the case up to the Apex Court and when there is a decree of eviction in favour of first respondent, why without obtaining possession from judgment-debtor he will deliver possession to the petitioner even if as argued by learned counsel for the petitioner that the decree-holder/respondent No. 1 is her tenant and judgment-debtor is the sub-tenant in the accommodation in question.

The intervention application of first intervener-Sudheer Chandra Datt cannot be allowed and the impugned order cannot be somersaulted and set aside for the simple reason that he had already filed objection under Order 21 Rule 97 of CPC which according to the learned counsel has already been rejected and against which appeal is still pending although no stay order has been passed. Thus, the rights of first intervener shall be governed by the order which will be passed by the appellate court. Hence intervention application (I.A. 11658/2013) is hereby rejected.

So far as the objection/intervention of second intervener-Alok Chansoria is concerned, learned counsel Shri Amitabh Gupta himself has submitted that he has not yet filed any objection under Order 21 Rule 97 of CPC although he is in possession of the accommodation. Hence I am of the view that this is not a proper forum and stage to file intervention application here. If the second intervener, if so advised, may file necessary application under Order 21 Rule 97 of CPC. I have not expressed any view that any of the intervener is in possession of the shop in question.

With the aforesaid observations, I do not find any illegality in the impugned order. Resultantly, this petition fails and is hereby dismissed. No order as to costs.