Delhi District Court
Shri Amit Gulati vs Mrs. Varsha Mehra on 1 September, 2018
IN THE COURT OF SHRI GIRISH KATHPALIA,
DISTRICT & SESSIONS JUDGE
SOUTH EAST : SAKET COURT, NEW DELHI.
RCT ARCT No. 19/2018
1. SHRI AMIT GULATI
S/o LATE SHRI S.C. GULATI
SHOP No. 12, DEFENCE COLONY MARKET
NEW DELHI 110024
... APPELLANT
VERSUS
1. Mrs. VARSHA MEHRA
W/o SHRI INDER SARAN MEHRA
R/o 18, NETAJI SUBHASH MARG,
DARYAGANJ, DELHI 110002
2. ATUL GULATI
S/o LATE SHRI S.C. GULATI
SHOP No. 12, DEFENCE COLONY MARKET
NEW DELHI 110024
3. Ms. POOJA GULATI @ SHIKSHA GULATI
D/o LATE SHRI S.C. GULATI
R/o 204, GROUND FLOOR, SANT NAGAR,
EAST OF KAILASH, NEW DELHI 110065
...RESPONDENTS
Date of filing : 02.07.2018 First date before this court : 03.07.2018 Arguments concluded on : 29.08.2018 Date of Decision : 01.09.2018 Appearance : Shri Shivinder Chopra, counsel for appellant Shri Amit Singh Chadha, Senior Counsel with Shri Kunal Sinha counsel for respondent no. 1 Shri Deepak Sharma, counsel for respondent no. 3 RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 1 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors.
RCT ARCT No. 22/20181. ATUL GULATI S/o LATE SHRI S.C. GULATI
2. Ms. POOJA GULATI @ SHIKSHA GULATI D/o LATE SHRI S.C. GULATI BOTH R/o 204, GROUND FLOOR, SANT NAGAR, EAST OF KAILASH, NEW DELHI 110065 ... APPELLANTS VERSUS
1. Mrs. VARSHA MEHRA W/o SHRI I.S. MEHRA R/o 18, NETAJI SUBHASH MARG, DARYAGANJ, DELHI 110002
2. SHRI PANKAJ GULATI S/o LATE SHRI S.C. GULATI R/o 204, GROUND FLOOR, SANT NAGAR, EAST OF KAILASH, NEW DELHI 110065
3. AMIT GULATI S/o LATE SHRI S.C. GULATI SHOP No. 12, DEFENCE COLONY MARKET NEW DELHI 110024
4. Mrs. LUCKY GIROTRA W/o SANDEEP GIROTRA TOWER No. 4, FLAT No. 701 VIPUL BELMONTE, SECTOR53, GOLF COURSE ROAD GURGAON 122002
5. Mrs. ROSY MATTA W/o Dr. SUNEEL MATTA 1622, AMBADKHAR NAVGAZA, MATHURA, UTTAR PRADESH 281001 ...RESPONDENTS RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 2 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors.
Date of filing : 28.07.2018 First date before this court : 30.07.2018 Arguments concluded on : 29.08.2018 Date of Decision : 01.09.2018 Appearance : Shri Deepak Sharma, counsel for appellant Shri Amit Singh Chadha, Senior Counsel with Shri Kunal Sinha counsel for respondent no. 1 Shri Shivinder Chopra, counsel for respondent no. 3 J U D G M E N T
1. The above two rent appeals, arising out of intertwined factual and legal matrix are taken up together. Respondent no. 1 of both appeals is landlord while the remaining respondents of both appeals and appellants of both appeals are legal representatives of the now deceased original tenant Shri Subhash Chand Gulati. I have heard learned counsel for both appellants as well as learned Senior Counsel for respondent no. 1 in these appeals.
2. Briefly stated, circumstances leading to the present appeals are as follows.
2.1 Late Shri Subhash Chander Gulati, father of the appellants entered into a rent agreement with mother in law of respondent no. 1 in respect of premises no. 12, Defence Colony Market, New Delhi (hereinafter referred to as "the demised premises"). Mother in law of respondent no. 1 passed away, bequeathing the demised premises to respondent no. 1. After demise of Shri Subhash Chander Gulati, the tenancy in respect of the demised premises was inherited by his legal representatives including the appellants of these two appeals. Amongst RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 3 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. the legal representatives of Shri Subhash Chander Gulati, there was a series of litigations pertaining to the estate left behind by Shri Gulati, during pendency whereof the present respondent no. 1 filed eviction proceedings pertaining to the demised premises under Section 14(1) (g) of the Delhi Rent Control Act.
2.2 Vide judgment and order dated 27.05.2009, the learned Rent Controller allowed the eviction petition, directing the present respondent no. 1 to complete the reconstruction of premises within ten months of receiving possession of the demised premises and to place back the appellants in occupation of the basement of the demised premises, though the tenancy inherited by them was with respect to ground floor premises.
2.3 Vide order dated 13.09.2010, the municipal authorities rejected the application of revalidation of building plans, which order was challenged by the present respondent no. 1 by way of an appeal before the Appellate Tribunal MCD.
2.4 In the meanwhile, the appellant Shri Amit Gulati filed an appeal before my learned predecessor against the eviction order dated 27.05.2009, which appeal was disposed of vide order dated 09.11.2011 directing that the eviction order would be executed only upon the present respondent no. 1 showing to the satisfaction of the executing court the revalidated building plans.
RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 4 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. 2.5 Appeal filed by the present respondent no. 1 against rejection of revalidation of the building plans was dismissed by the Appellate Tribunal MCD on 27.01.2012, granting liberty to the present respondent no. 1 to apply afresh for sanction of building plans.
2.6 Order dated 27.01.2012 of the Appellate Tribunal MCD was challenged by way of appeal by the present respondent no. 1 before the learned District Judge, South, Saket Courts, but subsequently, on 13.02.2013 learned counsel for the present respondent no. 1 withdrew that appeal reserving right to move an appropriate application before the learned Rent Controller to seek suitable modification of the terms on which eviction order dated 27.05.2009 had been passed.
2.7 After obtaining the validated sanction plans for reconstruction of the demised premises, the present respondent no.1 filed execution proceedings on 02.11.2016, in which the appellant Shri Amit Gulati appeared on 23.12.2016 and got the matter adjourned to 04.02.2017 for filing objections. But objections were not filed by any of the judgment debtors, so at request of the appellant Shri Amit Gulati, one more opportunity to file objections was given by the executing court, posting the matter to 16.03.2017 by way of last and final opportunity. Even thereafter till 03.05.2017, objections were not filed by any of the judgment debtors.
RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 5 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. 2.8 On 03.05.2017, the learned executing court recorded satisfaction regarding valid sanction plans available with the present respondent no. 1 and the judgment debtors were directed to handover vacant possession of the demised premises within two months. Even thereafter, objections were not filed and the period of two months for vacating the demised premises also expired.
2.9 It is thereafter on 04.09.2017 that the appellant Shri Amit Gulati filed his objections against the execution proceedings.
2.10 In the meanwhile, the appellant Shri Atul Gulati challenged order dated 03.05.2017 of the executing court before the Hon'ble Delhi High Court by way of Ex. FA 14/17, but after arguments and at the stage of dictation of the judgment, counsel for the appellant Shri Atul Gulati withdrew the said Execution First Appeal.
2.11 Objections filed by the appellant Shri Amit Gulati on 04.09.2017 were dismissed by the learned executing court by way of impugned order dated 23.05.2018, against which he has filed the above rent appeal.
2.12 The appellant Shri Atul Gulati who was one of the parties to the eviction proceedings before the learned Rent Controller was proceeded exparte vide order dated 26.03.2009 and the eviction order dated 27.05.2009 was passed exparte against him. Although, some of RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 6 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. the other legal representative of late Shri Subhash Chand Gulati also were proceeded exparte and they filed the appeal which was dismissed vide order dated 09.11.2011, Shri Atul Gulati opted not to file any appeal against the exparte eviction order.
2.13 Upon receipt of notice of the execution proceedings, the appellant Shri Atul Gulati preferred an application under Order IX Rule 13 CPC for setting aside the exparte eviction order, which application came up for first hearing on 20.03.2017 but the learned Rent Controller refused to stay the execution proceedings and adjourned the matter to 09.05.2017. In the meanwhile, on 03.05.2017, the learned Rent Controller recorded satisfaction qua validation of the building plans, observing that there was no stay of the execution proceedings.
2.14 Since on 09.05.2017, the learned Rent Controller was on leave, reader of the court adjourned the application under Order IX Rule 13 CPC of appellant Shri Atul Gulati to 24.07.2017. It is thereafter that against order dated 03.05.2017, Shri Atul Gulati filed Execution First Appeal before the Hon'ble Delhi High Court and withdrew the same after brief arguments on 31.05.2017.
2.15 Application of appellant Shri Atul Gulati under Order IX Rule 13 CPC was ultimately dismissed vide order dated 12.02.2018 of the learned Rent Controller. Thereafter, the appellant Shri Atul Gulati filed objections dated 20.07.2018 in the executions proceeding which RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 7 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. were dismissed by the learned execution court by way of the impugned order dated 21.07.2018. Hence, the appeal filed by the appellant Shri Atul Gulati.
3. In the impugned order dated 23.05.2018, which has been assailed by Shri Amit Gulati, the learned executing court, after recording the brief history of the case as narrated above, took a view that since despite repeated opportunities the judgment debtors including Shri Amit Gulati had not filed objections to the execution proceedings, the court recorded its satisfaction regarding validity of sanction plans obtained by the decree holder and now, one of the judgment debtors Shri Amit Gulati could not be permitted to put the clock backwards by filing the objections, especially because Shri Amit Gulati had not sought recall of order dated 03.05.2017. The learned executing court held that by way of objections filed in the execution proceedings the judgment debtors could not be permitted to seek review of order dated 03.05.2017 and that too much beyond expiry of 30 days. The learned executing court also observed that order dated 03.05.2017 had attained finality since the same was challenged by the other judgment debtors by way of Execution First Appeal, which was withdrawn and all the judgment debtors being joint tenants are bound by the outcome of the said Execution First Appeal. For these reasons, the learned executing court held that the objections filed by Shri Amit Gulati were not maintainable.
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4. In order dated 21.07.2018, assailed by Shri Atul Gulati, the objections to the execution proceedings filed on the same day were dismissed by the executing court. As observed in the impugned order dated 21.07.2018, the only ground of objections was that the decree holder had failed to comply with the conditions imposed by the learned District Judge vide appellate order dated 09.11.2011 as regards satisfaction of the executing court regarding revalidation of building plans. Taking note of the record, the learned executing court observed that the said satisfaction regarding revalidation of building plans had already been recorded by the court vide order dated 03.05.2017, as per which the grant of sanction for reconstruction is now valid upto 03.10.2021. The learned executing court also observed that appeal filed by the judgment debtors had been dismissed, so there was no merit in the objections. Therefore, the objections filed by Shri Atul Gulati were dismissed.
5. During arguments, learned counsel for both sides took me through the above record.
6. Learned counsel for appellant Shri Amit Gulati argued that in view of Section 47 CPC, it is the duty of the executing court to adjudicate upon all questions arising between the parties and relating to the execution. It was argued that there is no limitation period prescribed in law for filing objections in the execution proceedings, so the learned RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 9 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. executing court ought to have decided the objections on merits. It was further argued by learned counsel for appellant Shri Amit Gulati that till the date of impugned order, right of the appellant to file objections was not explicitly closed, so the learned executing court wrongly held the objections to be not maintainable.
7. Learned counsel for appellant Shri Atul Gulati supported the appeal of Shri Amit Gulati. As regards the appeal filed Shri Atul Gulati, his counsel argued that he took more than one year to file objections to the execution proceedings since his application under Order IX Rule 13 CPC was pending adjudication and the said application having got dismissed on 12.02.2018, Shri Atul Gulati filed objections on 21.07.2018 since the appellant Atul Gulati had right not to file objections till decision on his application under Order IX Rule 13 CPC. Learned counsel for appellant Shri Atul Gulati placed reliance on the judgment of Hon'ble Delhi High Court in the case of Yogender Kumar vs Ram Kishan Gupta, 2011 (182) DLT 468 in support of his argument that the learned executing court ought to have conducted a detailed scrutiny and inquiry on the objections filed by appellants of both appeals.
8. Learned Senior Counsel on behalf of respondent no. 1 of both appeals also took me through the complete record and argued that there is no infirmity in either of the impugned orders, so both appeals are liable to be dismissed. Learned Senior Counsel demonstrated from RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 10 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. record that the appellants of these appeals, who are real brothers, have been trying to play hide and seek in a manner as if left hand does not know what the right hand is doing. Both appellants being predecessors of late Shri Subhash Chand Gulati inherited the tenancy of the demised premises as joint tenants, so act of one in such litigation binds the other. It was argued by learned Senior Counsel that once order dated 03.05.2017 qua validation of sanction plans attained finality, the same could not be reviewed by the learned executing court under the garb of objections to execution, therefore, the impugned orders are legally sound. Learned Senior Counsel also argued that neither of the appeals raises any question of fact or even law, so both appeals are liable to be dismissed. It was also argued by learned Senior Counsel that as regards the appeal filed by Shri Atul Gulati, the objections were duly considered and dismissed on merits and it is not a case of holding the objections not maintainable. Learned Senior Counsel placed reliance on the judgments in the cases of Narender Kaur vs Mahesh Chand & Sons, in R.C. Rev. 29/2012 decided on 17.08.2012 MANU/DE/4127/2012; Harish Tandon vs Addl. District Magistrate, Allahabad, UP & Ors., (1995) I SCC 537; Mohd. Usman vs Surayya Begum, MANU/DE/0750/1990; Rajender Kumar Sharma & Ors. vs Leela Wati & Ors., MANU/DE/ 1386/2008 in support of his argument that the appellants being joint tenants, orders passed in the proceedings initiated by either of them would bind the other.
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9. In rebuttal arguments, learned counsel for appellants in both appeals disputed the legal status of legal representatives of late Shri Subhash Chand Gulati and contended that heirs of the original tenant inherit tenancy as tenants in common and not as joint tenants upon death of original tenant. Therefore, steps taken in the tenancy litigation by Shri Amit Gulati shall not bind Shri Atul Gulati and vice versa, according to appellants.
10. After conclusion of final arguments, when the appeals were posted for orders, learned counsel for appellant Shri Atul Gulati filed application dated 20.08.2018 seeking to address further arguments with the help of judgment of Hon'ble Delhi High Court in the case of Rakesh Jain vs Suresh Kumar Kohli, 2014(1) AD (Delhi) 752. The said application for further arguments was taken up on 20.08.2018 and since dictation of the judgment had not yet started, in order to ensure effective hearing, notice of the said application was issued to counsel for respondents for 29.08.2018. On 29.08.2018, learned Senior Counsel on behalf of respondent no. 1 as well as learned counsel for both appellants appeared, but learned counsel for Shri Atul Gulati sought to withdraw his application for further arguments, when the learned Senior Counsel moved an application for initiating contempt proceedings because the judgment of Hon'ble Delhi High Court (on the basis whereof pronouncement of judgment had been got deferred) stood already set aside by the Hon'ble Supreme Court of India in the case of Suresh RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 12 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. Kumar Kohli vs Rakesh Jain, AIR 2018 SC 2708. The said contempt application was separately registered and imposing cost, application for further arguments was dismissed as withdrawn and arguments were held concluded.
11. It is in the above backdrop of factual and legal matrix that the present appeals have to be adjudicated upon.
12. Fulcrum of these appeals rests on the legal issue as to whether upon death of a tenant, his/her legal representatives inherit the tenancy as joint tenants or as tenants in common. According to both appellants, their status, having admittedly inherited the tenancy after death of their father, is of tenants in common, while according to respondent no. 1, status of both appellants and other legal representatives of late Shri Subhash Chand Gulati is that of joint tenants, in the sense that act of any of those legal representatives would bind rest of the legal representatives.
13. In the case of Narender Kaur (supra), the Hon'ble Single Judge of the Delhi High Court rejected the contention that eviction petition was not maintainable due to nonjoinder of some of the legal representatives of the deceased tenant and held that it is settled legal position that it is not necessary for the landlord to implead all the legal heirs of the deceased tenant and it is sufficient if the eviction petition is RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 13 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. filed against any one of the joint tenants and all joint tenants would be equally bound by the eviction order.
14. In the case of Harish Tandon (supra), the admitted factual position was that the premises in question were let out to Shri Sheobux Roy who died in the year 1941 leaving behind five sons out of whom three carried on their business in the said premises; on the question of contravention by one of the legal representatives of Shri Sheobux Roy, the Hon'ble High Court took a view that after death of Shri Sheobux Roy, his five sons became tenants in common, so contravention by one of them shall not be a ground for eviction as regards the other cotenants. After a detailed discussion, the Hon'ble Supreme Court of India observed thus :
"21. ...However, this court in the case of H.C. Pandey vs G.C. Paul (1989) 3 SCC 77 in connection with the same Act said :
"It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants."
22. ...According to us, it is difficult to hold that after the death of the original tenant, his heirs become tenants in RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 14 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors.
common and each one of the heirs shall be deemed to be an independent tenant in his own right. This can be examined with reference to Section 20 (2) which contains the grounds on which a tenant can be evicted. Clause (a) of Section 20 (2) says that if the tenant is in arrear of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand, then that shall be a ground on which the landlord can institute a suit for eviction. Take a case where the original tenant who was paying the rent dies leaving behind four sons. It need not be pointed out that after death of the original tenant, his heirs must be paying the rent jointly through one of his sons. Now if there is default as provided in clause (a) of subsection (2) of Section 20 in respect of the payment of rent, each of the sons will take a stand that he has not committed such default and it is only the other sons who have failed to pay the rent. If the concept of heirs becoming independent tenants is to be introduced, there should be a provision under the Act to the effect that each of the heirs shall pay the proportionate rent and in default thereto such heir or heirs alone shall be liable to be evicted. There is no scope for such division of liability to pay the rent which was being paid by the original tenant, amongst the heirs as against the landlord what the heirs do inter se, is their concern. Similarly, so far as ground (b) of subsection (2) of Section 20, which says that if the tenant has willfully caused or permitted to be caused substantial damage to the building, then the tenant shall be liable to be evicted; again, if one of the sons of the original deceased tenant willfully causes substantial damage to the building, the landlord cannot get possession of the premises from the heirs of the deceased tenant since the damage was not caused by all of them. Same will be the position in respect of clause (c) which is another ground for eviction i.e. the tenant has without the permission in writing of the landlord made or permitted to be made, any such construction or structural alteration in the building which is likely to diminish its RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 15 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors.
value or utility or to disfigure it. Even if the said ground is established by the landlord, he cannot get possession of the building in which construction or structural alterations have been made diminishing its value and utility unless he establishes that all the heirs of the deceased tenant had done so......
23. It appears to us, in the case of H.C. Pandey vs. G.C. Paul (1985) 2 SCC 683 it was rightly said by this court that after the death of the original tenant, subject to any provision to the contrary, the tenancy rights devolve on the heirs of the deceased tenant jointly. The incidence of the tenancy is the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor and the heirs succeed to the tenancy as joint tenants"
15. Finally, in the case of Suresh Kumar Kohli (supra), the Hon'ble Supreme Court of India recapitulated various judicial pronouncements on the aspect of inheritance of tenancy and concluded thus :
"20. We are of the view that in the light of H.C. Pandey (supra) the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 16 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors.
of filing of eviction petition. An eviction petition against one of the joint tenants is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs."
16. Going by the above described legal position, the irresistible conclusion in the present case is that the appellant Shri Atul Gulati and the appellant Shri Amit Gulati as well as the remaining legal representatives of late Shri Subhash Chand Gulati inherited tenancy of the demised premises as joint tenants in a sense that all the said legal representatives together constitute a single body tenant to the extent that act of one organ binds all the remaining organs of the body.
17. In the execution proceedings filed by the present respondent no.1 as decree holder on 02.11.2016, all legal representatives of late Shri Subhash Chand Gulati were impleaded as judgment debtors and notices were issued to them. On 23.12.2016, both appellants Shri Amit Gulati and Shri Atul Gulati entered appearance in the execution proceedings through their respective counsel.
18. Thereafter, the execution proceedings were adjourned to 04.02.2017, 16.03.2017, 07.04.2017 and 03.05.2017 but despite their constant presence in the proceedings, counsel for neither of the appellants filed objections to the execution petition.
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19. On 16.03.2017, learned counsel for Shri Amit Gulati sought some time to file objections on the ground that copy of the sanction plans had been received by him on the same day, so the learned execution court granted last and final opportunity to Shri Amit Gulati to file objections on or before the next date after supplying advance copy to the counsel for decree holder atleast one week in advance. Despite such an order, on behalf of appellant Shri Amit Gulati, objections were not filed even on 03.05.2017.
20. On 03.05.2017, in presence of counsel for Shri Amit Gulati as well as counsel for Shri Atul Gulati, the learned executing court specifically observed that despite order dated 16.03.2017 no objection had been filed on behalf of Shri Amit Gulati. But there was not even a whisper from the side of Shri Amit Gulati seeking more time to file objections. On 03.05.2017, counsel for Shri Atul Gulati argued that on account to pendency of application under Order IX Rule 13 CPC, no further orders in the execution proceedings could be passed but this argument was rightly rejected by the learned executing court on the ground that no stay of execution proceedings had been granted.
21. On 03.05.2017, learned counsel for respondent no. 1 placed on record the fresh sanction of building plans for reconstruction issued by SDMC in respect of the demised premises and the plans being valid till 03.10.2021, the learned executing court observed that there is no impediment for execution, so the judgment debtors were directed to RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 18 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. vacate the demised premises within two months and thereafter the decree holder would complete reconstruction within ten months.
22. Even after 03.05.2017, followed by expiry of further two months within which the demises premises had to be vacated also, none of the judgment debtors filed objections.
23. It is only on 04.09.2017 that the appellant Shri Amit Gulati filed objections to the execution petition and when the same were taken up on 15.09.2017, learned counsel for the decree holder objected to taking the same on record. The said objections were held to be not maintainable by way of the impugned order dated 23.05.2018.
24. Going by the above narrated circumstances, in my view, the learned executing court was absolutely correct in rejecting the objections of the appellant Shri Amit Gulati as not maintainable since the learned executing court had no power to set aside order dated 03.05.2017 whereby satisfaction as regards validation of the reconstruction plans in compliance with the appellate order of my learned predecessor had been recorded by the court. As rightly observed by the learned executing court, despite repeated opportunities followed by last and final opportunity, none of the legal representatives of the deceased tenant Shri Subhash Chand Gulati filed objections and even review of order dated 03.05.2017 was not sought.
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25. In any case, as mentioned above, order dated 03.05.2017 of the learned executing court had already attained finality by 23.05.2018 after the appellant Shri Atul Gulati challenged order dated 03.05.2017 before the Hon'ble Delhi High Court by way of Execution First Appeal which was dismissed as unconditionally withdrawn vide order dated 31.05.2017 in Ex. FA 14/2017 after arguments at the stage of dictation of the judgment by the Hon'ble Single Judge of the Delhi High Court. That finality of order dated 03.05.2017 in the proceedings initiated by Shri Atul Gulati would bind Shri Amit Gulati as well as all the remaining legal representatives of the deceased tenant Shri Subhash Chand Gulati since all of them are joint tenants.
26. The objections filed on behalf of the appellant Shri Amit Gulati on 04.09.2017 are mainly in the nature of challenge to the validation of the sanction plans, which validation was accepted by the learned executing court vide order dated 03.05.2017 and the same were conferred finality by the order dated 31.05.2017 of the Hon'ble Delhi High Court. Therefore, there was no legally sustainable authority with the learned executing court to reanalyze the said aspect and the learned executing court rightly found the objections not maintainable.
27. As regards the objections filed by the appellant Shri Atul Gulati, as reflected from the impugned order dated 21.07.2018 the only ground of objection was that the decree holder had failed to comply with the conditions imposed by my learned predecessor by way of appellate RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 20 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. order dated 09.11.2011 and that objection was rejected by the learned executing court observing that vide order dated 03.05.2017, satisfaction of the court as regards revalidation of sanction plans had already been recorded and the appeal filed by Shri Atul Gulati against order dated 03.05.2017 stood dismissed.
28. Further, there is also no legally sustainable explanation as to why even after dismissal of application under Order IX Rule 13 CPC on 12.02.2018, Shri Atul Gulati kept sleeping over the issue till 21.07.2018 by not filing any objection till that day, though the time granted by the learned executing court to vacate the demised premises stood expired by 02.07.2017. Argument of learned counsel for appellant Shri Atul Gulati that he had right not to file objections to the execution on account of pendency of his appeal against dismissal of application under Order IX Rule 13 CPC fails to hold water. For, if that was so, it remains unexplained as to what made him file the objections subsequently during pendency of that appeal and what made him challenge order dated 03.05.2017 of the learned executing court by way of Execution First Appeal. The appellant Shri Atul Gulati filed objections on 21.07.2018 i.e. after more than one year of dismissal of his appeal against order dated 03.05.2017, for which delay there is no explanation. I find substance in the submissions of learned Senior Counsel on behalf of respondent no. 1 that the appellants of these two appeals were apparently acting in concert with each other with the objective of frustrating the landlord, in the sense that initially one of them (Shri Atul Gulati) opted RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 21 of 22 pages RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors. not to contest and was proceeded exparte while the other (Shri Amit Gulati) continued to contest and subsequently in the name of getting the exparte set aside, Shri Atul Gulati tried to derail the entire proceedings. And this submission of learned Senior Counsel for respondent no. 1 was lent credence by the conduct of learned counsel for the appellant Shri Atul Gulati, who after conclusion of final arguments tried to get decision on the appeals deferred by seeking opportunity to address further arguments on the basis of a judgment of the Hon'ble Delhi High Court which had already been set aside by the Hon'ble Supreme Court of India.
29. In view of above discussion, I am unable to find any infirmity in either of the impugned orders dated 23.05.2018 and 21.07.2018 of the learned executing court, so both the said orders are upheld and both appeals are found meritless, so the same are dismissed.
30. Execution Court record be returned forthwith alongwith copy of this judgment and both appeal files be consigned to records leaving the parties bear their own cost.
Announced in the open court on
this 01st day of September, 2018 (GIRISH KATHPALIA)
District & Sessions Judge
Digitally signed
by GIRISH South East, Saket Courts
GIRISH
New Delhi 01.09.2018 (a)
KATHPALIA
KATHPALIA Date: 2018.09.04
15:27:47 +0530
RCT ARCT No. 19/2018 Amit Gulati vs Varsha Mehra & Ors. Page 22 of 22 pages
RCT ARCT No. 22/2018 Atul Gulati & Ors. vs Varsha Mehra & Ors.