Himachal Pradesh High Court
Decided On : 06.11.2024 vs Umesh Kumar & Anr on 6 November, 2024
1 2024:HHC:11464 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Revision No. 142 of 2024 DECIDED ON : 06.11.2024 ________________________________________________________ Kamlesh & Ors. ....PETITIONERS Versus Umesh Kumar & Anr. ....RESPONDENTS ________________________________________________________ Coram:
Hon'ble Mr. Justice Ranjan Sharma, Judge Whether approved for reporting? Yes ________________________________________________________ For the petitioners : Mr. Naveen K. Bhardwaj, Advocate.
For the respondents : Mr. Ram Lal, Advocate ________________________________________________________ Ranjan Sharma, Judge Petitioners, Kamlesh and others, being the tenants after having suffered eviction from four Courts, have come up before this Court, in instant revision petition assailing the orders dated 18.10.2024 [Annexure P-3], [referred to as the Impugned Order], passed by the Learned Senior Civil Judge Court No 1, Kangra, District Kangra, (HP), [referred to as the Executing Court], in CMA F No. 1558/2024, tagged with Rent Case Reg. No. 01/2019, tilted as Umesh 2 2024:HHC:11464 versus Kamlesh, dismissing the objections of petitioners
-judgment debtors.
FACTUAL MATRIX:
2. Case of the petitioners-judgement debtors as set-up by Mr. Naveen K. Bhardwaj, Learned Counsel is that Respondents-Landlords [Umesh Kumar, since deceased and Dinesh Kumar] being the owners, rented out their demised premises, a shop measuring, 4 m x 5 m i.e. 20 Sq. mtrs., situated over land comprised in Khata No. 115 min, Khatauni No. 268, Khasra No. 2107 Kita 1 area measuring 0-00-32 Hects., situated at Mohal and Mauza Nagrota, Tehsil and District Kangra vide Jamabandi for the year 2001-
02 to one Sh. Jagdish Chand {father in law of the petitioner no 1} and after his death on 14.02.1996, his son namely, Shri Satish Kumar {husband of the petitioner no 1-Kamlesh, continued as a tenant in the demised premises and after the death of Shri Satish Kumar on 12.12.2006, the present petitioners, continued to be in possession of the demised premises in question, as tenants.
3
2024:HHC:11464 EVICTION PROCEEDINGS AGAINST PETITIONERS:
3. Respondents-Landlords [Umesh Kumar and Dinesh Kumar], filed a Rent Petition No 1/2009, seeking eviction of the petitioners/tenants and in terms of the judgment dated 31.08.2016 [Annexure A-1], Learned Rent Controller ordered eviction of petitioners- tenants, on the ground of being under arrears of rent and for having ceased to occupy premises for more than 12 months continuously.
3(i). Petitioners-tenants assailed the judgement dated 31.08.2016 [Annexure A-1], passed by Learned Rent Controller before the Learned Appellate Authority Kangra at Dharamshala, Himachal Pradesh, which was dismissed on 18.11.2017 [Annexure P-2]. 3(ii). Petitioners-tenants assailed the judgements passed by the Learned Rent Controller and then by Learned Appellate Authority before the High Court in Civil Revision No. 256 of 2017, titled as Kamlesh & Ors vs Umesh Kumar & Anr, which was dismissed by this Court on 27.11.2018 [Annexure P-3]. 4
2024:HHC:11464 3(iii). Still feeling dissatisfied, the petitioners- tenants approached the Hon'ble Supreme Court, in Special Leave to Appeal (C) No (s) 7633/2019, titled Kamlesh & Ors versus Umesh Kumar & Anr, and the SLP which was dismissed on 04.04.2019. [Taken on Record].
EXECUTION PROCEEDINGS INSTITUTED BY RESPONDENTS-DECREE HOLDERS AGAINST PETITIONERS-JUDGMENT DEBTORS:
4. Respondents-Decree Holders {being Landlords} [Dinesh Kumar and Kanchan, wife of Umesh Kumar] filed an Execution Petition on 18.01.2019, under Section 26 of H.P. Urban Rent Control Act, 1987 read with Order XXI Rule 11 of Civil Procedure Code, claiming possession of rented-demised premises in term of the judgement dated 31.08.2016 [Annexure P-1] passed by Learned Rent Controller.
4(i). Petitioners-judgment debtors {being tenants} filed objections under Section 47 CPC on 14.10.2019 [Annexure P-2A], and amongst other pleas, a specific stand was taken in Para No. 8 of the objections 5 2024:HHC:11464 that the orders of Court have not attained finality as yet.
4(ii). Respondents-Decree Holders filed a reply to the objections on 03.01.2000, stating that these objections were frivolous and vexatious and objections were filed just to delay and to deprive the decree holders of the fruits of the litigation and resultant possession of demised premises.
4(iii). During pendency of Execution proceedings, the petitioners-Judgment Debtors filed an application i.e. CMA No: F-1558 of 2024, for placing on record photographs of demised premises shop and another shop of the Respondents-Decree Holders. 4(iv). The Executing Court i.e. Learned Senior Civil Judge-I, Kangra dismissed the objections of the petitioners-judgment debtors as well as the Application for placing on record the photographs {CMA-F 1558 of 2024}, by placing the Impugned Order dated 19.10.2024 [Annexure P-3] in following terms:-
"5. I have gone through the case file very carefully in the light of rival contentions 6 2024:HHC:11464 of both the parties and also perused the record of the case file with minute care and caution. The J.D. /objectors have resisted and contested instant execution petition firstly on the ground that the Ld Rent Controller has wrongly determined the decretal amount and also that JD. never ceased to occupy the demised shop. Perusal of order in question as well as Judgment of Appellate Court shows that the issue with respect to non-payment of arrears of rent as well as cessation to occupy has been discussed in details and upon adjudication by this Court on evidence led by both the parties, this court had come to the conclusion that JD/tenant is liable to be evicted on said grounds. Further, so far as wrong determination of decretal amount is concerned, it is well settled that an executing Court cannot reopen matter as it is not open for executing court to go beyond decree (reliance placed upon ILR (2000) Kant 3651). So far as payment of arrears of rent as on 24-2-2011 (during pendency of the main petition) is concerned, perusal of main file & zimni orders etc reveals that no such amount has been deposited.
Objector/Jds have also not placed on record any receipt qua such deposit as well. Further, the JDs have resisted the petition on the ground that an application under section 148, 151 C.P.C. for enlargement of time to deposit the arrears of rent amounting to Rs.15,598/- on 19-11-2016 is pending. The perusal of case file however shows that said application stands dismissed in default vide order dated 11-4-2019. Even otherwise, in view of Judgment passed by Hon'ble High Court of H.P in Hans Raj Khimta v. Smt. Kanwaljeet Kaur alias Sardarni Babli Latest HLJ 2016 (HP) and in Pradeep Aggarwal v. Maya Poddar and Anr. 2018 7 2024:HHC:11464 Lawsuit (HP) 1040, it is well settled that as per provision of section 14 of H.P. Urban Rent Control Act, the arrears of rent is to be directly paid to the landlord and cannot be deposited in the court until and unless there is sufficient evidence that landlord has refused to accept the arrears of rent. Perusal of application moved by the JD's shows that no such averments has been made that DHs refused to receive the arrears of rent. Also so far as prayer of enlargement/ extension of time for deposit of rent is concerned, there is no provision for extension of said statutory period of 30 days under the H.P Urban Rent Control Act. Evidently, execution petition on ground of non-payment of arrear of rent is maintainable & sustainable.
Based upon the aforesaid observations, therefore, we have no hesitation in holding that the expression "amount due" as occurring in the third proviso includes the arrears of rent uptil the date of the passing of the final eviction order, as also the interest upon such arrears of rent at the rate of 9 per cent per annum and the costs of the application as would be assessed by the Rent Controller. The Division Bench judgment of this Court in the case of Om Parkash v. Sarla Kumari and Ors laying down ratio to the contrary and giving contrary interpretation to the expression "amount due", not being a good law is hereby over-ruled by us. We also declare that any other judgment of this Court adopting a contrary view or giving a contrary interpretation of the expression "amount due", not being a good law, shall stand over-ruled."
Undoubtedly, based on the ratio in Madan Mohan and Anr. v. Krishan Kumar Sood, 8 2024:HHC:11464 the rent payable by the tenant to the landlord, which the Rent Controller would be specifying in the order of eviction) would be the arrears of rent uptil the filing of the eviction petition under Section 14(2)(i) as well as the arrears of rent which have accumulated during the pendency of eviction petition, right up to the date of passing of the eviction order. The purpose behind the Rent Controller specifying in the eviction order the exact amount of rent payable by the tenant is to directly link it with the third proviso so as. to effectively enable the tenant to know with certainty the amount that he is liable to pay to save his eviction."
Therefore in view of aforesaid authorities, it is amply clear that in case of non tender/payment of costs of the petition to landlord within 30 days from date of eviction order, the eviction order becomes executable. Therefore, in view of aforesaid discussion and findings this Court is of the opinion that the objections preferred by the JD are meritless and hence dismissed. Objections filed by JD's stands disposed off. After due completion be tagged with main file for record. Now so far as present execution petition is concerned, since J.D has failed to pay/tender the 'amount due' in entirely to the DH within 30 days from date of order /judgment passed by Learned Rent Controller and also as petition succeeds on ground of cessation to occupy, let warrant of possession of demised/tenanted premises comprising of shop measuring 4 m x 5 m i.e. 20 Sq. mtrs situated over land comprised of Khata No. 115 min, Khatauni No. 268, Khasra No. 2107 Kita 1 area measuring 0-00-32 Hec., situated at Mohal and Mauza Nagrota, Tehsil and District Kangra vide jamabandi 9 2024:HHC:11464 for the year 2001-02, be issued returnable for 18.11.2024.
Execution Clerk/Rent Ahlmad of this Court to do needful."
Sd/-
Senior Civil Judge Kangra"
CHALLENGE TO IMUPGNED ORDER DATED 18.10.2024 [Annexure P-3] BY PETITIONERS- JUDGEMENT DEBTORS IN PRESENT REVISION PROCEEDINGS:
5. Petitioners-judgement debtors {being tenants} have assailed the Impugned Order dated 18.10.2024 [Annexure P-3] dismissing the objections of petitioners on the grounds, firstly, the Impugned Order passed by the Learned Executing Court is against facts and law and by ignoring the provisions of Section 47 CPC; and secondly, the Executing Court has dismissed the objections without framing issues and without affording an opportunity to lead evidence and without permitting the petitioners to tender documents i.e. photographs to show that Respondents had a medicine shop which was ignored; thirdly, the objections were decided by Executing Court without considering the fact that an application was filed seeking enlargement of time to deposit the arrears of rent on 19.11.2016 10 2024:HHC:11464 which could not be deposited within a period of 30 days of passing of orders dated 31.08.2016 by Rent Controller as the Learned Counsel failed to inform them of such right; and fourthly, the Executing Court dismissed the objections in a hasty and slip-short manner; and lastly, the application of the petitioners to lead additional evidence by way of photographs was wrongly disallowed by the Executing Court.
It is in this backdrop, the petitioners- judgement debtors assailed the Impugned Order dated 18.10.2024, Annexure P-3, passed by the Executing Court.
PROCEEDINGS BEFORE THIS COURT:
6. Upon listing of this case on 28.10.2024, the Respondents-Decree-holders-Landlords, being the Caveators, {Caveat Petition No. 466 of 2024}, were represented by Mr. Ram Lal, Learned Counsel, who has opposed the instant petition as well as the prayer for Interim, on the ground that the petitioners have not approached this Court with clean hands, and have suppressed factum of SLP having been dismissed 11 2024:HHC:11464 on 04.04.2019 and also on the ground that the Impugned Order dated 18.10.2024 does not suffer from any infirmity.
6(i). Upon listing the case on 28.10.2024, the same was adjourned for 29.10.2024, when, the Learned Counsel for the petitioners submitted that he had filed an application for placing the judgments of the trial Courts, when, the matter was adjourned for 06.11.2024. On listing of case on 06.11.2024, the matter was heard at length and is being disposed of at this stage.
7. Heard Mr. Naveen K. Bhardwaj, Learned Counsel for the petitioners and Mr. Ram Lal, Learned Counsel for the respondents.
STATUTORY PROVISIONS INVOLVED :
8. Before proceeding further, this Court deems it necessary to have a recap of the statutory provisions of the Himachal Pradesh Urban Rent Control Act 1987 providing for eviction of tenants and execution of orders-judgements under the aforesaid statute. 12
2024:HHC:11464 8(i). The provision of Section 14 of the H.P. Urban Rent Control Act, 1987 reads as under: -
"14. Eviction of tenants. -
(l) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise, whether before or after the termination of the tenancy, except in accordance with the provisions of this Act.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied-
(i) that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable:
Provided that If the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at the rate of 9 per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within time aforesaid:
Provided further that if the arrears pertain to the period prior to the appointed 13 2024:HHC:11464 day, the rate of interest shall be calculated at the rate of 6 per cent per annum:
Provided further that the tenant against whom the Controller has made an order for eviction on the ground of non-payment of rent due from him, shall not be evicted as a result of his order, if the tenant pays the amount due within a period of 30 days from the date of order ; or
(ii) that the tenant has after the commencement of this Act without the written consent of the landlord ;
(a) transferred his rights under the lease or sublet the entire building or rented land or any portion thereof;
or
(b) used the building or rented land for a purpose other than that for which it was leased ; or
(iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land ; or
(iv) that the tenant has been guilty of such acts and conduct as are nuisance to the occupiers of buildings in the neighbourhood;
or (v) that the tenant has ceased to
occupy the building or rented land for a continuous period of twelve months without reasonable cause ; the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application;
14
2024:HHC:11464 Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time so as not to exceed three months in the aggregate.
(3) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession:
(a) in the case of a residential building, if-
(i) he requires it for his own
occupation
Provided that he is not occupying another residential building owned by him in the urban area concerned:
Provided further that he has not vacated such a building without sufficient cause within five years of the filing of the application, in the said urban area; or
(ii) it was let to the tenant for use as a residence by reason of his being in service or employment of the landlord, and the tenant has ceased, whether before Or after commencement of this Act, to be in such service or employment :
Provided that where the tenant is a workman who has been discharged or dismissed by the landlord from his service or employment in contravention of the provisions of the Industrial Disputes Act, 1947 (14 of 1947), he shall not be liable to be evicted until the competent authority under that Act confirms the order of discharge or dismissal made against him by the landlord;15
2024:HHC:11464
(iii) the landlord is a member of the Armed Forces of the Union of India and requires it for the occupation of his family and if he produces a certificate of the prescribed authority referred to in section 7 of the Indian Soldiers (Litigation) Act, 1925, (4 of 1925) that he is serving under special conditions within the meaning of section 3 of that Act or is posted I n a non-family station.
Explanation-I.- For the purposes of this sub-clause- (1) the certificate of the prescribed authority shall be conclusive proof of the fact that the landlord is serving under special conditions, or is posted in a non-family station; (2) "family" means parents and such relation(s) of landlord as ordinarily reside with him and is/are dependent upon him ;
(iv) the tenant has, whether before or after the commencement of this Act, built or acquired vacant possession of or been allotted, a residence reasonably sufficient for his requirements
(b) in the case of rented land, if
(i) he requires it for his own use:
Provided that he is not occupying in the urban area concerned any other rented land for the purpose of his business:
Provided further that he has not vacated such rented land without sufficient cause within five years of the filing of the application in the urban area concerned;
16
2024:HHC:11464
(ii) he requires rented land for
construction of residential or non- residential building or for establishment of industry;
(iii) the tenant lets out his rented land to some body else on higher rent;
(c) in the case of any building or rented land, if he requires it to carry out any building work at the instance of the Government or local authority or any Improvement Trust under some improvement or development scheme or if it has become unsafe or unfit for human habitation or is required bona fide by him for carrying out repairs which cannot be carded out without the building or rented land being vacated or that the building or rented land is required bona-fide by him for the purpose of building or re-building or making thereto any substantial additions or alterations and that such building or rebuilding or addition or alteration cannot be carried out without the or rented land being vacated;
(d) in the case of any residential building, if he requires it for use as an office, or consulting room by his son who intends to start practice as a lawyer, an architect, a dentist, an engineer, a veterinary surgeon or a medical practitioner, including a practitioner of Ayurvedic Unani or Homoeopathic System of Medicine or for the residence of his son who is married, if (i) his son as aforesaid is not occupying in the urban area concerned any other building for use as office consulting room or residence, as the case may be;
and (ii) his son as aforesaid has not vacated such a building without sufficient cause, after the commencement of this Act, in the urban area concerned :
17
2024:HHC:11464 Provided that where the tenancy is for a specified period, agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this sub-section before the expiry of such period:
Provided further that where the landlord has obtained possession of any building or rented land under the provisions of clause (a) or clause (b), he shall not be entitled to apply again under the said clause for the possession of any other building of the same class or rented land:
Provided further that where a landlord has obtained possession of any building under the provisions of clause (d), he shall not be entitled to apply again under the said clause f or the use of, or for the residence of the same son, as the case may be.
(4) The Controller shall, if he is satisfied that the claim of the landlord is bonafide, make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller and if the Controller is not so satisfied he shall make an order rejecting the application:
Provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building or rented land and may extend such time not exceeding three months in the aggregate.
(5) Where a landlord who has obtained possession of the building or rented land in pursuance of an order under sub-section (3) does not occupy it himself or if possession was 18 2024:HHC:11464 obtained by him for his family in pursuance of an order under sub-clause (iii) of clause (a) of sub-section. (3), his family does not occupy the residential building, or if possession was obtained by him on behalf of his son in pursuance of an order under clause (d) of sub-section (3) his son does not occupy it for the purpose for which the possession was obtained, for a continuous period of twelve months from the date of obtaining possession or if possession was obtained under sub-section (2) of section 15 he does not occupy it for personal use for a continuous period of 3 months from the date of obtaining possession or where a landlord who has obtained possession of a building under clause (c) of sub-section (3) puts that building to any use other than that for which it was obtained or lets it out to any tenant other than the tenant evicted from it, the tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of such building or rented land and the Controller shall make an order accordingly.
(6) Where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises shall be made under this section on the ground specified in sub-clause (i) of clause (a) of sub-
section (3) unless a period of five years has elapsed from the date of such acquisition.
(7) Where the Controller is satisfied that any application made by a landlord for the eviction of a tenant is frivolous or vexatious, the Controller may direct that compensation not exceeding five hundred rupees be paid by the such landlord to the tenant." 19
2024:HHC:11464 8(ii). The provision of Section 26 of the H.P. Urban Rent Control Act, 1987 relating to execution of orders reads as under:-
"26. Execution of orders.-
Save as otherwise provided in section 31, any order made by the Controller or an order passed on appeal under this Act, shall be executable by the Controller as a decree of a civil court and for this purpose, the Controller shall have all the powers of a civil court."
8(iii). The ambit, scope and power of a Court in respect of execution of a decree has been outlined in Section 36 and 47 CPC and in Order XXI and the Rules issued thereunder reads as under:-
"36. Application to orders:-
The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders.
47. Questions to be determined by the Court executing decree:-
(1) All question arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding 20 2024:HHC:11464 under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees.
(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
Explanation:- For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit. Order XXI Rule 1 CPC Modes of paying money under decree;- (1) All money, payable under a decree shall be paid as follows, namely:-
(a) by deposit into the court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or
(b) out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing; or
(c) otherwise, as the Court which made the decree, directs.
(2) Where any payments is made under clause
(a) or clause (c) of sub-rule (1), the judgment
-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgment due.
(3) Where money is paid by postal money order or through a bank under clause (a) or clause
(b) of sub-rule (1), the money order or payment through bank, as the case may be, shall accurately state the following particulars, namely:-21
2024:HHC:11464
(a) the number of the original suit;
(b) the names of the parties or where there are more than two plaintiffs or more than two defendants, as the case may be, the names of the first two plaintiffs and the first two defendants;
(c) how the money remitted is to be adjusted, that is to say, whether it is towards the principal, interest or costs;
(d) the number of the execution case of the Court, where such case is pending; and
(e) the name and address of the payer.
(4) On any amount paid under clause (a) or clause (c) of sub-rule (1), interest, if any, shall cease to run from the date of service of the notice referred to in sub-rule (2).
(5) On any amount paid under clause (b) of sub-rule (1), interest, if any, shall cease to run from the date of such payment:
Provided that, where the decree-holder refuses to accept the postal money order or payment through a bank, interest shall cease to run from the date on which the money was tendered to him, or where he avoids acceptance of the postal money order or payment through bank, interest shall cease to run from the date on which the money would have been tendered to him in the ordinary course of business of the postal authorities or the bank, as the case may be.
2. Payment out of Court to decree-holder;-
(1) Where any money payable under a decree of any kind is paid out of Court, or decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree-
holder, the decree-holder shall certify such payment or adjustment to the Court whose 22 2024:HHC:11464 duty it is to execute the decree, and the Court shall record the same accordingly. (2) The judgment-debtor or any person who has become surety for the judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.
(2A) No payment or adjustment shall be recorded at the instance of the judgment-debtor unless (a) the payment is made in the manner provided in rule 1; or (b) the payment or adjustment is proved by documentary evidence; or (c) the payment or adjustment is admitted by, or on behalf of, the decree-holder in his reply to the notice given under sub-rule (2) of rule 1, or before the Court.
(3) A payment or adjustment, which has not been certified or recorded as aforesaid, shall not be recognized by any Court executing the decree.
30. Decree for payment of money;
Every decree for the payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in the civil prison of the judgment-debtor, or by the attachment and sale of his property, or by both.
35. Decree for immovable property;- 23
2024:HHC:11464 (1) Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property.
(2) Where a decree is for the joint possession of immovable property, such possession shall be delivered by affixing a copy of the warrant in some conspicuous place on the property and proclaiming by beat of drum, or other customary mode, at some convenient place, the substance of the decree. (3) Where possession of any building on enclosure is to be delivered and the person in possession, being bound by the decree, does not afford free access, the Court, through its officers, may, after giving reasonable warning and facility to any woman not appearing in public according to the customs of the country to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in possession.
36. Decree for delivery of immovable property when in occupancy of tenant:-
Where a decree is for the delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, the substance of the decree in regard to the property."24
2024:HHC:11464 MANDATE OF LAW PRESCRIBING BROAD PRINCIPLES ON AMBIT, SCOPE AND POWERS IN EXECUTION:
9. Before proceeding to analyse the rival claims-contentions, it would be necessary to outline the broad legal principles, outlining the ambit, scope and powers of an Executing Court in execution proceedings under Section 47 of the Code of Civil Procedure.
9(i). In the case of Kiran Singh and others v. Chaman Paswan and others AIR 1954 S.C. 340, question was raised, when decree passed by a Court nullity and whether execution of such a decree can be resisted at the execution stage which would obviously mean by taking an objection under Section 47 of the Code :-
"It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings."
9(ii). In the case of Haji Sk. Subhan v. Madhorao, AIR 1962 S.C.1230, the question as to whether 25 2024:HHC:11464 an executing Court can refuse to execute a decree on the ground that same has become inexecutable on account of change in law {in Madhya Pradesh by promulgation of M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 and a decree was passed in ignorance of the same, has been answered in following terms: -
"The contention that the Executing Court cannot question the decree and has to execute it as it stands, is correct, but this principle has no operation in the facts of the present case. The objection of the appellant is not with respect to the invalidity of the decree or with respect to the decree being wrong. His objection is based on the effect of the provisions of the Act which has deprived the respondent of his proprietary rights, including the right to recover possession over the land in suit and under whose provisions the respondent has obtained the right to remain in possession of it. In these circumstances, we are of opinion that the executing Court can refuse to execute the decree holding that it has become inexecutable on account of the change in law and its effect."
Similar view was reinforced in the case of Vidya Sagar v. Smt. Sudesh Kumari and others, AIR 1975 S.C. 2295, allowing the objection taken under Section 47 of the Code that decree passed 26 2024:HHC:11464 was incapable of execution after due to subsequent promulgation of legislation by State Legislature. 9(iii). In Ittyavira Mathia v. Varkey Varkey, AIR 1964 SC 907, while deciding the question as to whether a Court, having jurisdiction over the parties to the suit and subject-matter thereof passes a decree in a suit which was barred by time, such a decree would come within the realm of nullity and the Court answered the question in the negative holding that such a decree cannot be treated to be a nullity but at the highest be treated to be an illegal decree, in following terms:-
"If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has 27 2024:HHC:11464 acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities."
9(iv). In the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others, AIR 1970 S.C.1475, the Court was considering the scope of objection under Section 47 of the Code in relation to the executability of a decree erroneous either in law or on facts cannot be subject matter of objection whereas a decree which is nullity can form basis of objection under Section 47, runs as under:
"6. A Court executing a decree cannot go behind the decree between the parties or their representatives ; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an 28 2024:HHC:11464 objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."
9(v). In Dhurandhar Prasad Singh vs. Jai Prakash University & Ors, (2001) 6 SCC 534, the Hon'ble Supreme Court has outlined that an Executing Court can allow objection to executability of decree if it is found that the decree is void ab initio and nullity or is not capable of execution either because it was passed in ignorance of a provision of law or due to subsequent promulgation of law making it inexecutable, as under:-
"22. Thus the expressions void and voidable have been subject matter of consideration on innumerable occasions by courts. The expression void has several facets. One type of void acts, transactions, decrees are those which are wholly without 29 2024:HHC:11464 jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceeding or otherwise. The other type of void act, e.g., may be transaction against a minor without being represented by a next friend. Such a transaction is good transaction against the whole world. So far the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate proceeding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e.g., if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as apparent state of affairs is real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases, where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable.
23. Under Section 47 of the Code, all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or satisfaction of decree have got to be determined by the court executing the decree and not by a separate suit. The powers of Court under Section 47 30 2024:HHC:11464 are quite different and much narrower than its powers of appeal, revision or review. A first appellate Court is not only entitled but obliged under law to go into the questions of facts as well like trial court apart from questions of law. Powers of second appellate Court under different statutes like Section 100 of the Code, as it stood before its amendment by Central Act 104 of 1976 with effect from 1.2.1977, could be exercised only on questions of law. Powers under statutes which are akin to Section 100 of the Code, as amended and substituted by the aforesaid Central Act, have been further narrowed down as now in such an appeal only substantial question of law can be considered. The powers of this Court under Article 136 of the Constitution of India, should not be exercised simply because substantial question of law arises in a case, but there is further requirement that such question must be of general public importance and it requires decision of this Court. Powers of revision under Section 115 of the Code cannot be exercised merely because the order suffers from legal infirmity or substantial question of law arises, but such an error must suffer with the vice of error of jurisdiction. Of course, the revisional powers exercisable under the Code of Criminal Procedure and likewise in similar statutes stand on entirely different footing and much wider as there the court can go into correctness, legality or propriety of the order and regularity of proceeding of inferior court. It does not mean that in each and every case the revisional court is obliged to consider question of facts as well like a first appellate Court, but the court has discretion to consider the same in appropriate cases whenever it is found expedient and not in each and every 31 2024:HHC:11464 case. Discretion, undoubtedly, means judicial discretion and not whim, caprice or fancy of a Judge. Powers of review cannot be invoked unless it is shown that there is error apparent on the face of the record in the order sought to be reviewed.
24. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing Court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. In the case on hand, the decree was passed against the governing body of the College which was defendant without seeking leave of the Court to continue the suit against the University upon whom the interest of the original defendant devolved and impleading it. Such an omission would not make the decree void ab initio so as to invoke application of Section 47 of the Code and entail dismissal of execution. The validity or otherwise of a decree may be challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that original defendant absented himself from the proceeding of the suit after appearance as it had no longer any interest in the subject of dispute or did not purposely take interest in the proceeding or colluded with the adversary or any other ground permissible under law."32
2024:HHC:11464 9(vi). In Kanwar Singh Saini vs. High Court of Delhi, (2012) 4 SCC 307, the Hon'ble Supreme Court has held the decree passed by a Court or Tribunal or Forum having no jurisdiction over the subject matter as inexecutable-unenforceable in following terms:-
"22. There can be no dispute regarding the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes order/decree having no jurisdiction over the matter, it would amount to a nullity as the matter goes to the roots of the cause. Such an issue can be raised at any belated stage of the proceedings including in appeal or execution. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of a party equally should not be permitted to defeat the legislative animation. The court cannot derive jurisdiction apart from the statute.
23. When a statute gives a right and provides a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act. When an Act creates a right or obligation and enforces the performance thereof in a specified manner, "that performance cannot be enforced in any other manner". Thus for enforcement of a right/obligation under a statute, the only remedy available to the person aggrieved is to get adjudication of rights under the said Act.33
2024:HHC:11464
25. It is a settled legal proposition that the executing court does not have the power to go behind the decree. Thus, in absence of any challenge to the decree, no objection can be raised in execution. (vide State of Punjab v. Mohinder Singh Randhawa)."
9(vii). While outlining the ambit, scope and power of an Executing Court, while dealing with objections under Section 47 of the Code, it has been held in M/s Brakewel Automotive Components (India) Pvt. Ltd. vs. P.R. Selvam Alagappan, (2017) 3 SCALE 627: AIR 2017 SC 1577, as under:-
"19. is no longer res integra that an Executing Court can neither travel behind the decree nor sit in appeal over the same or pass any order jeopardizing the rights of the parties thereunder. It is only in the limited cases where the decree is by a court lacking inherent jurisdiction or is a nullity that the same is rendered non-est and is thus inexecutable. An erroneous decree cannot be equaled with one which is a nullity. There are no intervening developments as well as to render the decree inexecutable.
20. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and 34 2024:HHC:11464 purported grounds having no bearing on the validity or the executability thereof.
21. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric. This Court, amongst others in Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rehman and others 1971 (1) SCR 66 in essence enunciated that only a decree which is a nullity can be the subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt:
"A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which 35 2024:HHC:11464 could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."
23. Having regard to the contextual facts and the objections raised by the respondent, we are of the unhesitant opinion that no case has been made out to entertain the remonstrances against the decree or the application under Section 47 CPC. Both the Executing Court and the High Court, in our comprehension, have not only erred in construing the scope and ambit of scrutiny under Section 47 CPC, but have also overlooked the fact that the decree does not suffer either from any jurisdictional error or is otherwise invalid in law. The objections to the execution petition as well as to the application under Section 47 CPC filed by the respondent do not either disclose any substantial defence to the decree or testify the same to be suffering from any jurisdictional infirmity or invalidity. These are therefore rejected.
24. On a consideration of all relevant aspects in the entirety, we are thus disinclined to sustain the impugned orders and hereby set-aside the same. The appeals are allowed. The Executing Court would proceed with the execution proceedings and take it to the logical end with utmost expedition. 9(viii). In Rahul S. Shah vs. Jinendra Kumar Gandhi & Ors., (2021) 6 SSC 418, the Hon'ble Supreme Court has detailed principles for execution and expeditious adjudication of decree after having attained finality as under:-
36
2024:HHC:11464 "41. Having regard to the above background, wherein there is urgent need to reduce delays in the execution proceedings we deem it appropriate to issue few directions to do complete justice. These directions are in exercise of our jurisdiction under Article 142 read with Article 141 and Article 144 of the Constitution of India in larger public interest to subserve the process of justice so as to bring to an end the unnecessary ordeal of litigation faced by parties awaiting fruits of decree and in larger perspective affecting the faith of the litigants in the process of law.
42. All Courts dealing with suits and execution proceedings shall mandatorily follow the below -mentioned directions:
42.1. In suits relating to delivery of possession, the court must examine the parties to the suit under Order X, in relation to third Party interest and further exercise the power under Order XI Rule 14 asking parties to disclose and produce documents, upon oath, which are in possession of the parties including declaration pertaining to third party interest in such properties.
42.2. In appropriate cases, where the possession is not in dispute and not a question of fact for adjudication before the Court, the Court may appoint Commissioner to assess the accurate description and status of the property.
42.3. After examination of parties under Order X or production of documents under Order XI or receipt of commission report, the Court must add all necessary or proper parties to the suit, so as to avoid multiplicity of proceedings and also make such joinder of cause of action in the same suit.37
2024:HHC:11464 42.4. Under Order XL Rule 1 of CPC, a Court Receiver can be appointed to monitor the status of the property in question as custodia legis for proper adjudication of the matter.
42.5. The Court must, before passing the decree, pertaining to delivery of possession of a property ensure that the decree is unambiguous so as to not only contain clear description of the property but also having regard to the status of the property.
42.6. In a money suit, the Court must invariably resort to Order XXI Rule 11, ensuring immediate execution of decree for payment of money on oral application.
42.7. In a suit for payment of money, before settlement of issues, the defendant may be required to disclose his assets on oath, to the extent that he is being made liable in a suit. The Court may further, at any stage, in appropriate cases during the pendency of suit, using powers under Section 151 CPC, demand security to ensure satisfaction of any decree.
42.8. The Court exercising jurisdiction under Section 47 or under Order XXI of CPC, must not issue notice on an application of third-party claiming rights in a mechanical manner. Further, the Court should refrain from entertaining any such application(s) that has already been considered by the Court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.
42.9. The Court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by 38 2024:HHC:11464 resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits.
42.10The Court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or mala fide, resort to Sub-rule (2) of Rule 98 of Order XXI as well as grant compensatory costs in accordance with Section 35A.
42.11 Under section 60 of CPC the term "...in name of the judgment- debtor or by another person in trust for him or on his behalf"
should be read liberally to incorporate any other person from whom he may have the ability to derive share, profit or property.
42.12The Executing Court must dispose of the Execution Proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay.
42.13The Executing Court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the concerned Police Station to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the Court, the same must be dealt stringently in accordance with law.
42.14. The Judicial Academies must prepare manuals and ensure continuous training through appropriate mediums to the Court personnel /staff executing the warrants, carrying out attachment and sale and any other official duties for executing orders issued by the Executing Courts.39
2024:HHC:11464
43. We further direct all the High Courts to reconsider and update all the Rules relating to Execution of Decrees, made under exercise of its powers under Article 227 of the Constitution of India and Section 122 of CPC, within one year of the date of this Order. The High Courts must ensure that the Rules are in consonance with CPC and the above directions, with an endeavour to expedite the process of execution with the use of Information Technology tools. Until such time these Rules are brought into existence, the above directions shall remain enforceable."
9(ix). In Pradeep Mehra vs Harijivan J. Jethwa, Civil Appeal No 6375 of 2023, on 30.10.2023, the Hon'ble Supreme Court has reiterated that the Executing Court can never go behind the decree and once a decree had attained finality and a judgment debtors having failed to take a plea-
objection cannot be permitted subsequently to revert back to an earlier stage of the proceeding, in the following terms:- .
"10. A bare perusal of the aforesaid provision shows that all questions between the parties can be decided by the executing court. But the important aspect to remember is that these questions are limited to the "execution of the decree". The executing court can never go behind the decree. Under Section 47, CPC the executing court cannot examine the validity of the order of the 40 2024:HHC:11464 court which had allowed the execution of the decree in 2013, unless the court's order is itself without jurisdiction. More importantly this order (the order dated 12.02. 2013), was never challenged by the tenants/ judgment debtors before any forum.
18. The respondents herein are the tenants in the suit property at least since 1996. The present appellant is the landlord. The dispute between them was of sub-letting which led to the eviction suit before the Small Causes Court. During the proceedings, a settlement was arrived at between the parties, inter alia stipulating that the tenants would be liable for eviction if they commit a default of payment of rent for two successive months. According to the appellant/landlord, the tenants committed a default which led to the filing of the application under Order XXI Rule 11, CPC for execution of the decree. The executing court vide its order dated 12.02.2013 held that the decree is liable to be executed. This order was admittedly never challenged in appeal by the judgment debtor and has attained finality.
19. On 19.01.2017, i.e., nearly four years later, the judgment debtors moved an application before the executing court to set aside the order dated 12.02.2013, reiterating their previous stand that the tenants had never committed any default in payment of rent. Objection to the very maintainability of such an application was raised by the decree holder, inter alia on the grounds that the order dated 12.02.2013 has attained finality and cannot be reopened. The executing court, to our mind, took the correct decision in allowing the objections of the decree holder and dismissing the application filed by the judgment debtors on the ground of maintainability. 41
2024:HHC:11464
20. As we have already referred above, this order was taken in revision by the judgment debtors, where the revision was allowed and the order dated 28.09.2017 was set aside. The decree holder moved a petition before the Bombay High Court under Article 226/227 of the Constitution of India and the main ground taken before the High Court was that the revisional court fell into an error in holding that the application moved by the judgment debtors for setting aside the order dated 12.02.2013 comes within the purview of the power of the executing court given to it under Section 47 of the CPC. It was submitted by the decree holder before the High Court that the order dated 12.02.2013 had attained finality and res judicata would apply against the judgment debtors. In support of the submission the decree holder relied upon a decision of this court given in Barkat Ali v. Badrinarain (D) by Lrs., (2008) 4 SCC 615, where this court reiterated the settled position of law that the principles of res judicata are not only applicable in respect of separate proceedings but the general principles of res judicata are also applicable at the subsequent stage of the same proceedings and therefore the same court will be precluded to go into that question which has already been decided, or deemed to have been decided by it in the earlier stage. In other words, it will be barred by the principle of res judicata, or at least by the principle of constructive res judicata. The logic here is that an execution proceeding works in different stages and if the judgment debtors have failed to take an objection and have allowed the preliminary stage to come to an end and the matter has moved to the next stage, the judgment debtors cannot raise the objection subsequently, 42 2024:HHC:11464 and revert back to an earlier stage of the proceeding. This is exactly one of the reasons given by the executing court in its order dated 28.09.2017 which we have already referred above. Merely, because it has not specifically referred to the principle of res judicata will not make any difference.
22. The High Court, to our mind, committed an error by not interfering in the matter. To our mind this case has unnecessarily been dragging on for so long; which is for nearly two decades.
23. The order dated 22.12.2017 by the Appellate Court and the order dated 08.01.2021 by the High Court are not sustainable in the eyes of law. We therefore allow the appeal and set aside the order of the High Court dated 08.01.2021 and the order of the appellate court dated 22.12.2017, while we uphold the order of the executing court dated 28.09.2017.
24. The executing court is hereby directed to proceed with and complete the execution as expeditiously as possible, but at any event within a period of six months from the date a copy of this order is placed before the court. The interim order dated 27.07.2021 hereby stands vacated."
ANALYSIS:
10. After taking into account the factual matrix and the material on record and the broad parameters referred to above {as applicable}, and upon hearing the Learned Counsel for the petitioners-judgement debtors {being tenants} and the Learned Counsel 43 2024:HHC:11464 for the Respondents-decree holders {being Landlords}, this Court proceeds to analyse the rival contentions of the parties herein.
10(i). On considering the matter, this Court is of the considered view, that the Impugned Order dated 18.10.2024 [Annexure P-3], passed by the Executing Court i.e. the Learned Senior Civil Judge Court No 1, Kangra; in dismissing the objections of the petitioners-judgement debtors {tenants}, does not call for any interference, for the following reasons:-
10(ii). The first contention of petitioners-judgement debtors is that the Impugned Order passed by the Learned Executing Court is against the facts and law and by ignoring the provisions of Section 47 CPC is liable to be set-aside.
The above plea is without any substance, when, the Learned Executing Court has dismissed the objections of the petitioners-judgement debtors on 18.10.2024 {Annexure P-3}, after appreciating the facts in entirety. Once the decree was passed by 44 2024:HHC:11464 the Rent Controller, which was upheld by the Appellate Authority and even the Revision was dismissed by High Court and the SLP was dismissed on 04.04.2019 after appreciating the facts, the records as well as the law; then, in these circumstances, the Impugned Order dismissing the objections of the petitioners-
judgement debtors does not call for any interference.
11. The second contention of petitioners-
judgement debtors is that the Executing Court has dismissed the objections without framing issues and without affording an opportunity to lead evidence and also by dismissing the application for tendering documents i.e. photographs to show that Respondents had a medicine shop which was ignored.
The above plea is without any substance, when, the Learned Executing Court has dismissed the objections of the petitioners-judgement debtors on 18.10.2024 {Annexure P-3}, for the reason, that the Rent Controller based on pleadings, framed the Issues and after enabling parties to lead evidence adjudicated the lis, ordering the eviction of the petitioners on 45 2024:HHC:11464 ground of arrears of rent and cessation to occupy demised premises and directing the petitioners to hand over the vacant possession to the respondents- decree holders-landowners. Once the decree contained unambiguous and clear terms and even the grounds raised in the objections by the petitioners- judgement debtors related to points, which were already adjudicated by the Courts and these findings had already attained finality and even the pleas raised in the objections were not borne out from the material on record, therefore, in these circumstances, once the Learned Executing Court after taking into account the material on record did not necessitate framing of issues or leading of evidence in the execution proceedings then, the Executing Court did not commit any illegality in dismissing the objections without framing issues and without affording opportunity to lead evidence which was not deemed necessary, in the facts of the case. The Executing Court, cannot reopen the adjudicated facts by adopting a casual approach at the asking of the petitioners-judgement 46 2024:HHC:11464 debtors. Objections of the petitioners were rightly dismissed when, the Executing Court cannot reopen or initiate re-determination of facts which already stood adjudicated upon and had also attained finality. Moreover, based on the material on record neither any no rare nor any exceptional facts existed which necessitated framing of issues and affording opportunity to the objector to lead evidence before deciding the same {refer Rahul S Shah} supra, then, Impugned Order passed by the Executing Court, by dismissing objections on 18.10.2024 {Annexure P-3}, does not suffer from any infirmity and the same is upheld.
11(i). While upholding an order of dismissing objections of judgement debtors, who had prayed for reopening and redetermination of adjudicated facts- issues, it has been held in Prem Singh & Ors. vs. Amari Devi Khatri (D) through her LRs, (2019) SCC Online Raj 3892, as under:
"33. This Court also finds that the learned court below has already observed that the facts which were being sought to be determined 47 2024:HHC:11464 in the execution petition by the petitioner have already been determined in the decree by the learned court passing the decree, and thus, there was no reason why re-determination of such facts would be done by the executing court.
Thus, in the given facts and circumstances, the learned court below has rightly exercised its jurisdiction by not initiating any fresh exercise of framing of issues or gathering of evidence, as there was no such requirement at this stage.
34. This Court further finds that the learned court below has rightly observed that the original documents and the record of the case clearly indicate that there is no requirement of framing of issues or taking of any fresh evidence, as it would unnecessarily delay the adjudication of the case. This Court has also taken note of the fact that the matter is more than 10 years old, and thus, the same needs to be decided expeditiously."
11(ii). In M/s K N Trading Co versus Masonic Fraternity of Shimla, ILR 1995 (HP) 1713, has held that post 01.02.1977 amendment to Section 47 of the Code, the Executing Court was fully empowered to decide the objections summarily, in case, the decree had attained finality and if no triable issues arise from the pleadings, in the following terms:-
"9. The submission made on behalf of the petitioner-judgment is without any substance.48
2024:HHC:11464 The perusal of objections, which are reproduced in para 2 of the impugned order, will show that only vague allegations have been made that the petitioner judgment has inducted tenants in the premises in dispute who are those tenants and at what point of time they were inducted as tenants. Though it is claimed that the petitioner- judgment debtor has a right under a lease executed between the parties to rent out the premises to different tenants, yet the particulars of the alleged lase have not been given. Therefore, on such type of pleadings, no triable issue arose which could be framed and determined. In the backdrop of the case, the resume of which is given hereinabove, it is clear that the only purpose of the petitioner-judgment debtor to file the objections is to delay the handing over of the possession of the premises in dispute. It may be observed here that under sub-section (2) of Section 47 of the Code of Civil Procedure, as it existed before its amendment, the executing court was authorised to treat the proceedings under this section as a suit and vice versa but after the amendment of this section w.e.f. 1.2.1977, the power conferred upon the Court to treat an application under Section 47 of the Code of Civil Procedure as a suit, has been specifically withdrawn, which shows that the executing Court is within its jurisdiction to proceed to decide the application under Section 47 i.e. objections summarily, if no triable issue arises from the pleadings. (Please refer to : Kulraj Singh Paul v. Smt. Ranjit Kaur and another, AIR 1983 Punjab and Haryana 299 and Harnek Singh v. Padam Kaur, 1989 Civil Court Cases 161 (P&H).49
2024:HHC:11464
10. The petitioner-judgment debtor has not given particular of the alleged agreement under which it has inducted tenants in the premises in dispute, as alleged by it. Had the alleged induction of tenants been before the order dated 13.4.1994, when its appeal was decided by the Supreme Court, the petitioner- judgment debtor would have pointed out in the proceedings pending in different Courts. However, even if it is assumed that the premises in dispute are in possession of sub-lessees inducted by the petitioner- judgment debtors, they are bound by the eviction order obtained by the respondent- decree holder, no matter whether the sub- lessees were inducted before or after the eviction order, which has become final between the parties. The alleged possession of sub-lessees inducted by the petitioner- judgment debtor is not in their independent capacity but through the petitioner-judgment debtor only, as such, they are liable to hand over possession in execution of the decree/eviction order against the petitioner- judgment debtor. Had it not been the legal position, all eviction orders would be avoided by the tenants on the ground that they have inducted sub-lessees in the premises in dispute and unless rights of those sub- lessees are determined, the possession of tenanted premises cannot be handed over in execution of eviction order."
11(iii). In Centre for Advance Studies and Engineering versus Hakam Chand, AIR 2006 HP 21, this Court has held that if the nature, tone and tenor of the objections are frivolous, vexatious, intended to delay the proceedings, vague and would 50 2024:HHC:11464 amount of abuse the process of Court, then, the Executing Cout can decide the same without framing issues and without leading evidence, in the following terms:-
"19. From the perusal of the above, it in would be clear that all questions arising between the parties relating to execution, discharge or satisfaction of a decree are to be determined by the Executing Court and the Executing Court must decide the question of fact raised by way of objections relating to execution of the decree, by framing necessary issues and by allowing the parties to lead evidence. However, it all depends upon nature and tenor of the objections raised by the judgment-debtor. Furthermore, if the objections are prima facie frivolous, vexatious, intended to delay the execution, vague and would amount to abuse of process of the Court, the Executing Court may dismiss the objections even without holding any inquiry but if by way of objections prima facie it is shown that the decree is not executable for some legal and valid reasons, the Executing Court is required to frame issues and record evidence and thereafter decide the objections. In the present case as referred to above, the objections filed by the judgment- debtor are not even worth consideration and on the face of it these have been filed with an intention to delay the execution of the decree dated March 26, 2004 passed by this Court and in any case these objections amount to abuse of the process of the Court."
51
2024:HHC:11464 11(iv). In facts of this case, once the petitioners- judgement debtors have raised the objections seeking reopening and re-determination of facts, which have attained finality; and the objections were frivolous; and the objections were vexatious only to deprive the Respondents-decree holders of fruits of litigation points for last more than 25 years now (since filing of petition in 2009 before Rent Controller}; and there is nothing on record to show that the decree was inexecutable for some legal and valid reasons; and the decree was clear and unambiguous; and even the plea of the petitioners that they had deposited the rent was factually incorrect and was otherwise not substantiated in terms of non-compliance of Rule 2 of Order XXI of the Code of Civil Procedure; and when, the plea of the objector of having paid the alleged arrears of rent was incorrect on facts and the bald assertion in absence of resort to Rule 2 of Order XXI of the Code of Civil Procedure could not be recognised on facts and in law, in view of the mandate of law in Sultana Begum vs. Prem Chand 52 2024:HHC:11464 Jain, (1997) 1 SCC 373; and even the plea of the objectors-petitioners of having filed an application for enlargement of time to deposit arrears of rent is in total contradiction to the plea that arrears of rent stands paid; and moreover, the factum that an application for enlargement of time was filed stood dismissed in default on 11.04.2019; and the plea by objectors that they were not disclosed about the right to deposit rent by their Learned Counsel is misconceived, when, the decree passed on 31.08.2016 {Annexure P-1} containing a "note" directing the petitioners-tenants to deposit rent which was not done and moreover, when, based on said decree the petitioners had filed litigations at four levels upto the Hon'ble Supreme Court, which was dismissed on 04.04.2019 and in these circumstances, the plea by objectors was just an afterthought and was frivolous; and moreover when, the objectors-petitioners had suppressed factum of dismissal of SLP while filing objections and even while filing the present petition, dissuades this Court to show indulgence 53 2024:HHC:11464 in the matter. Thus, once decree remained unexecuted till day due to vexatious and frivolous pleas then, Impugned Order dated 18.10.2024, {Annexure P-3} is legal, valid and does not suffer from any illegality or perversity and the same is accordingly upheld.
12. The third contention of Learned Counsel for petitioners-objectors that the Executing Court has passed the Impugned Order dated 18.10.2024, {Annexure P-3} dismissing the Objections, without considering the fact that an application was filed seeking enlargement of time to deposit alleged arrears of rent on 19.11.2016 and this application remained undecided.
The Executing Court has rightly dismissed this part of the Objection and passed the Impugned Order when, the application for enlargement of time stood dismissed in default on 11.04.2019.
13. The fourth contention of Learned Counsel for petitioners-objectors that the Executing Court has passed Impugned Order dated 18.10.2024, {Annexure 54 2024:HHC:11464 P-3} dismissing the Objections, without considering the fact that the Learned Counsel for the petitioners- objectors did not disclose about the right to deposit rent within a period of 30 days of the passing of the order/decree.
The above plea of the Objectors-petitioners was misconceived, when, a perusal of the order/the decree passed on 31.08.2016 {Annexure P-1} contained a "note" directing the petitioners-tenants to deposit the rent within 30 days of passing of the decree but once the petitioners-objectors-judgement debtors failed to deposit the rent, which was denied by the Respondents-decree holders as in findings recorded by the Executing Court then, the Impugned Order does not suffer from any infirmity. Based on the decree dated 31.08.2016 the petitioners-objectors had undertaken four round of litigations up to the Hon'ble Supreme Court, which was dismissed on 04.04.2019 then, the plea that they were not aware of the right to deposit arrears of rent was misconceived and was an abuse of process and this 55 2024:HHC:11464 plea was vexatious and frivolous just to delay the execution and conferment of rights and fruits of the litigation accruing under the decree to the decree holders-Respondents. Moreover, Rule 2 of Order 21 of the Code of Civil Procedure only recognises a specific mode of payment then, once the petitioners- Objectors-judgement debtors have failed to establish any remission of arrears of rent as required by rules then, absence of remission of arrears of rent within the permitted period in terms of the decree and the Rule 2 of Order 21 of the Code of Civil Procedure and the Law in Sultana Begum vs. Prem Chand Jain, (1997) 1 SCC 373, mandating that an executing court shall not recognize or look into any uncertified payment of money or any adjustment of decree except by way of the mode recognised in Rule 2 of Order 21 of the Code of Civil Procedure, in following terms:-
"22. Section 47, as pointed out earlier, gives full jurisdiction and power to the executing court to decide all questions relating to execution, discharge and satisfaction of the decree. Order 21 Rule 3, however, place a restraint 56 2024:HHC:11464 on the exercise of that power by providing that the executing court shall not recognize or look into any uncertified payment of money or any adjustment of decree. If any such adjustment or payment is pleaded by the judgment-debtor before the executing court, the letter, in view of the legislative mandate, has to ignore it if it has not been certified or recorded by the court.
23. The general power of deciding question relating to execution, discharge or satisfaction of decree under Section 47 can thus be exercised subject to the restriction placed by Order 21 Rule 2 including sub-rule (3) which contain special provisions regulating payment of money due under a general provision under Section 47 has, therefore, to yield to that extent to the special provisions contained in Order 21 Rule 2 which have been enacted to prevent a judgment-debtor from setting up false or cooked-up pleas so as to prolong or delay the execution proceedings.
24. If Section 47 and Order 21 Rule 2 are read together, as has been done by us in this case, the so-called conflict between say "so- called" as, in fact, there is none) stands dispelled by employing the rule of "harmonious construction" or the other rule that the general provision must yield to the special provision.
31. Proceedings under Order XXI Rule 2 are, therefore, not mere empty formality as contended by the respondent, but they are judicial proceedings.
32. The High Court has relied upon its own decision in Indra vs. Narayan Chand 1979 (2) RCR 1 and a decision of the Allahabad High Court in M/s Chitra Talkies vs. 57 2024:HHC:11464 Durga Dass Mehta AIR 1973 Allahabad
40. In both the cases, it was a fresh tenancy which was granted to the judgment-debtor and not a licence as in the instant case.
That apart, on principles of law, both the decisions, in our opinion, have not been correctly decided. As by us earlier, it is no doubt open to the parties to adjust or compromise their rights under the decree, but if it amounts to adjustment of decree, it must be reported to the court whose duty it is to execute the decree so that that court may record or certify the same. If it is not done, the court before whom the execution proceedings are initiated will proceed to execute the decree. It is not every time that the decree-holder and judgment -debtor enter into a compromise after the decree. The judgment-debtor may even set up a false case of compromise and creation of fresh tenancy after the decree. It is in order to prevent such judgment-debtors that Order XXI Rule 2 has been enacted so that if such compromise or creation of fresh tenancy has not been recorded, the judgment- debtor be not encouraged to initiate another round of litigation under Section 47 CPC.
41. In view of the above, the appeal is allowed, the judgment and order passed by the executing court as also by the High Court are set aside and the objections filed by the respondent under Section 47 CPC are dismissed with a direction to the executing court to proceed with the execution of the decree and deliver possession to the appellant."
[ In these circumstances, the plea of Objectors- petitioners that they had remitted the arrears of rent, 58 2024:HHC:11464 was factually incorrect and was not established in terms of Rule 2 of Order 21 of the Code of Civil Procedure coupled with the fact that the petitioners are stated to have filed an application for enlargement of time to deposit the arrears of rent which was dismissed in default on 11.04.2019 and the factum thereof was suppressed from the Executing Court, therefore, in this situation, the Executing Court had rightly dismissed the objections of the judgement debtors-petitioners, on 18.10.2024 {Annexure P-3}, which does not suffer from any infirmity.
14. The last contention of Learned Counsel for petitioners-objectors is that the Executing Court has dismissed the application of Objectors-judgement debtors whereby they have prayed for placing on record the photographs of medicine shop of the Respondents-decree holders.
The above plea is untenable for the reason that once the Learned Rent Controller had ordered the eviction on the ground of arrears of rent and ceasing to occupy demised premises for twelve 59 2024:HHC:11464 months, then, the application filed to reveal bona-fide requirement of the Respondents-decree holders, which was neither a ground of eviction nor was a part of decree then, such application was rightly dismissed and in allowing this application would tantamount to travelling beyond the decree, is impermissible. In this backdrop, the Executing Court rightly dismissed the objections of the judgement debtors-petitioners, on 18.10.2024 {Annexure P-3}, which does not suffer from any infirmity.
CONCLUSION AND DIRECTIONS:
15. In view of the above discussion and for the reasons recorded hereinabove, the instant petition is dismissed, in the following terms:-
(i) Instant petition being devoid of any merit, is dismissed;
(ii) Impugned Order dated 18.10.2024 [Annexure P-3] passed by the Learned Executing Court i.e. Senior Civil Judge Court No 1, Kangra, District Kangra, (HP), in CMA F No. 1558/2024, tagged with Rent Case Reg. No. 01/2019, 60 2024:HHC:11464 tilted as Umesh versus Kamlesh, does not suffer from any illegality or perversity and same is accordingly upheld;
(iii). Executing Court to proceed further in the matter in-accordance with law;
(iv) Costs made easy.
In aforesaid terms, the instant petition is dismissed and all pending miscellaneous application(s), if any, shall also stand disposed of.
(Ranjan Sharma) Judge November 06, 2024 (Shamsh Tabrez)