Smt. Sarla Devi and Others vs Hukam Chand

Jasbir Singh, J.—This revision petition has been filed by the petitioners - landlords against the order dated June 1, 1984, vide which execution application of the petitioners was dismissed on the ground that the decree passed in their favour was not executable. It is apparent from the records that the predecessor-in-interest of the petitioners field a suit for possession of the vacant land along with one room measuring 22'' x 8'', description of which was given by them in their plaint, which was rented out to the respondent at the rate of Rs. 25/- per month. In that suit, prayer was also made for recovery of rent due, amounting to Rs. 833.75 paise. Suit was decreed vide judgment and decree dated December 29, 1975. The petitioners were held entitled to get possession of the property in dispute and also recovery of rent of Rs. 325/-. Respondent went in appeal, which was disposed of on September 16, 1976, on the basis of a compromise arrived at between the parties. As per decree passed by the appellate Court below, the petitioners were not to execute the decree for ejectment till December 31,1979, and thereafter the respondent was entitled to remove the Malba from the property in dispute at his own costs. Liberty was granted to the petitioners to withdraw the amount lying deposited, at the instance of the respondents in the trial Court. It was further ordered that the respondent shall continue to deposit rent due after every six months at the rate of Rs. 650/- per six months and Rs. 50/- towards house-tax. It was also ordered that in case any default was committed by the respondent, in deposit of amount, as referred to above, the decree-holder would be entitled to execute the decree at once. When after the stipulated period, respondent-tenant failed to vacate the property in dispute, the petitioners field execution application, which was dismissed by the executing Court below vide the impugned order. Hence this revision petition.

Before the executing Court, it was contended by the respondent that the decree passed was not executable in view of the provisions of Haryana Urban (Control of Rent and Eviction)Act, 1973 (for short the Act). It was further stated that the execution application was barred by the principles of resjudicata and that after passing of the order by the appellate Court, as referred to above, a fresh'' tenancy had been created in favour of the respondent-tenant at the rate of Rs. 1,300/- per year. The executing Court below, while dismissing execution application, has specifically held that the petitioners were competent to file the execution application for recovery of amount due, to which the decree-holder is entitled. It was also held that the principle of res judicata was not applicable, as alleged by the respondent. It was further held that after passing of the judgment by the appellate Court below, no fresh tenancy was created in favour of the respondent-tenant. Qua that finding, no appeal/cross objection has been filed by the respondent. The executing Court has dismissed the execution application primarily on the ground that in view of applicability of the provisions of the Act, the decree has become unexecutable as the period of exemption from the provisions of the Act has already expired.

After hearing counsel for the parties, this Court feels that the executing Court has committed an error of law. It is not denied by the parties that the Act came into existence in the year 1973. Suit was field in the year 1974, admittedly as per provisions of the Act, the demised premises were exempted from the applicability of the Act. Objection to the effect that the Civil Court has no jurisdiction was also raised by the respondent in the suit and accordingly issues No. 1 and 4 were framed by the trial Court, which read thus:

1.Whether the properties in dispute are exempted from the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973?

Whether the Civil Court has no jurisdiction?

Both these issues were decided together and it was held by the trial Court in its judgment dated December 29, 1975, as under:

In view of the above discussion of the evidence of the parties I hold that the vacant land was rented out to the defendant after 31,3.1962 vide Ex.P2 and the construction of the Kothri was also completed much after 31.3,1962. Therefore, both the properties in dispute are exempt from the provisions of Haryana Urban (Control of Rent and Eviction) Act and hence this Civil Court has the jurisdiction to try the suit. Issue No. 1 is decided in favour of the plaintiff and issue No. 4 is decided against the defendant.

Once a finding has come that the civil Court had the jurisdiction to pass the decree in question, it was not open to the executing Court to ignore that decree simply on the ground that the exemption period was over. The view expressed by the executing Court runs contrary to the ratio of the judgment of the Hon''ble Supreme Court in Shri Kishan @ Krishan Kumar Vs. Manoj Kumar Etc. Etc., wherein by discussing a similar proposition, it was held as under:

Thus it is seen that this Court has been consistently taking the view that a suit instituted during the period of exemption could be continued and a decree passed therein could be executed even though the period of exemption came to an end during the pendency of the suit. The only discordant note was struck in Vineet Kumar v. Mangal Sain Wadhera 1984 73 S.C.C 353. We have noticed that several decisions subsequent thereto have held that Vineet Kumar is not good law. We have already construed the relevant provisions of the Act and pointed out that there is nothing in the Act which prevents the civil Court from continuing the suit and passing a decree which could be executed.

To the same effect is the ratio of the judgment of the Hon''ble Supreme Court in Atma Ram Mittal Vs. Ishwar Singh Punia, .

Contention of counsel for the respondent that after passing of the judgment and decree by the appellate Court below on September 16, 1976, a fresh tenancy was created in his favour is liable to be rejected. It is apparent from the decree, referred to above, that only execution was deferred and there was no intention to create any fresh tenancy in favour of the respondent. Furthermore, this issue was also raised before the execution Court, which, after discussing evidence on record, has held to the contrary. The respondent has not filed any appeal/cross-objection against the said finding, given by the executing Court.

In view of facts, mentioned above, this revision petition is allowed and the order under challenge is set aside. Matter is remitted to the executing Court to proceed further and execute the decree in favour of the petitioners as per law. The Court below is directed to issue notice to the parties and on their appearance shall try to dispose of the matter in an expeditious manner.