Punjab-Haryana High Court
Sukhdev Rai Kaushal vs Gokal Chand Mittal on 26 August, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No.4872 of 2013 (O&M)
Date of decision: 26th August, 2013
Sukhdev Rai Kaushal
Petitioner
Versus
Gokal Chand Mittal
Respondent
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Present: Mr. Gorakh Nath, Advocate for the petitioner.
Mr. V.K. Jain, Sr. Advocate with
Mr. Amit Jain, Advocate for the respondent.
RAKESH KUMAR GARG, J.
As per the pleaded facts, one Shamir Chand was the owner of SCF No.21, Sector 18-C, Chandigarh (demised premises). He had inducted the petitioner as a tenant in the demised premises in the year 1962. The said Shamir Chand executed a Will dated 13.04.1963 in favour of five sons (including the petitioner) and the widow of his deceased son namely Qabul Chand. The eviction petition was filed on 18.12.1980 against the petitioner on behalf of the six legatees. Initially the above said eviction petition `was filed in the Court of Rent Controller, Chandigarh; however, the petitioner had moved Hon'ble the Supreme Court for transfer of this eviction petition from Chandigarh to some other place and Hon'ble the Supreme Court had transferred the eviction petition from Chandigarh to Delhi. Ultimately, the eviction Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 2 petition was decided by the Rent Controller, Delhi on 03.03.1986 ordering eviction of the petitioner from the demised premises. The petitioner filed an appeal against the aforesaid order of the Rent Controller, Delhi before the Rent Controller Tribunal, Delhi, which was also dismissed on 18.05.1989. Thereafter, the petitioner filed a revision petition against the aforesaid two orders of the Authorities under the Rent Act in the High Court of Delhi, however, the said revision petition was subsequently transferred by the Hon'ble Supreme Court from Delhi to Chandigarh. The Civil Revision No.1583 of 1992 was dismissed by this Court on 30.05.2009.
At this stage, it may be noticed that the petitioner had filed Civil Misc. Nos.21333-34-CII of 2007 for bringing to the notice of this Court that he had purchased about 70 percent share of the demised premises from some of the co-sharers and the said fact be taken note of. Vide order dated 23.01.2008, the said applications were ordered to be heard along with the main case.
According to the petitioner, while dismissing the Civil Revision finally on 30.05.2009, this Court did not make reference to the aforesaid Civil Misc. applications despite the order dated 23.01.2008. The petitioner filed SLP against the aforesaid judgment dated 30.05.2009 of this Court passed in Civil Revision No.1583 of 1992, which was also dismissed vide order dated 28.02.2011. It may further be noticed that while dismissing the SLP vide order dated 28.02.2011, Hon'ble the Apex Court had specifically rejected the prayer of the Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 3 petitioner for deletion of the names of respondents from the eviction petition as petitioners (from whom the petitioner alleged to have purchased their share of property).
According to the further facts pleaded by the petitioner, all the co-owners of the demised premises, except the respondent herein, had sold their shares in this property in favour of the petitioner; and thus, he has become owner of 19/24 shares in this property and the respondent is owner only to the extent of 5/24 shares in the property in dispute.
The respondent filed a petition in the Court at Chandigarh for execution of the decree of eviction dated 03.03.1986 passed by the Rent Controller, Delhi. The petitioner filed objections against the aforesaid execution petition, to which the respondent filed reply and the petitioner further filed a rejoinder to the said reply of the respondent- decree holder.
The objection petition filed by the petitioner has been dismissed by the Executing Court at Chandigarh vide impugned order dated 05.08.2013, which is under challenge in the instant revision petition.
Though the petitioner, in his grounds of revision, has raised various arguments, however, he has raised the following arguments in support of his case and to challenge the impugned order of the Executing Court:
Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 4
1. In view of the provisions of Section 38 of CPC, the Executing Court has no jurisdiction to entertain the execution petition directly, as in this case decree dated 03.03.1986 was passed by the Rent Controller, Delhi.
2. The petitioner has become co-owner of the property in question and therefore, the decree of eviction against him has become inexecutable.
3. The Executing Court has rejected the objection summarily and without giving any opportunity to lead evidence to the petitioner.
In support of his case, learned counsel for the petitioner has placed heavy reliance upon the provisions of Section 38 of the Code of Civil Procedure and has vehemently argued that CPC envisages two situations for execution, i.e. either by the Court which passed the decree or by the Court to which it is sent for execution. Since in the instant case, the decree of eviction was passed against the petitioner by the Rent Controller, Delhi; either the execution petition could have been filed there in the first situation or at the most after filing it before the Rent Controller, Delhi the same could have been sent for execution to the Rent Controller, Chandigarh under the second situation; and therefore, the execution petition which has been filed directly in the Court of Rent Controller, Chandigarh is not maintainable. In support of the aforesaid argument, learned counsel for the petitioner has placed Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 5 reliance upon the judgments of Hon'ble the Supreme Court rendered in 'Mohit Bhargava v. Bharat Bhushan Bhargava and others' 2007(2) RCR (Civil) 843 and 'Merla Ramanna v. Nallaparaju and others' AIR 1956 SC 87; and a judgment of this Court in 'Kasturi Rao and another v. Mehar Singh and another' AIR 1959 Punjab 350. Thus, according to learned counsel for the petitioner in the instant case execution petition could have been filed in the first instance only before the Rent Controller, Delhi which had passed the decree of eviction dated 03.03.1986.
Counsel for the petitioner has further argued that admittedly, the petitioner has purchased 19/24 shares of the property in dispute and thus, has become co-owner/co-sharer in the said property and his tenancy rights have merged with his ownership rights and therefore, the respondent cannot execute the ejectment order passed against the petitioner as the decree in question stood extinguished to the extent of interest so assigned in his favour and its execution could lie only to the extent of remaining part which cannot be given effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit. According to learned counsel for the petitioner, Order XXI Rule 15 CPC enables joint decree-holder to execute a decree in its entirety but if whole of the decree cannot be executed then this provision can be of no avail and in that event the decree-holder will have to work out its rights in an appropriate suit for partition and obtain necessary relief thereto. It has been further brought to the notice of this Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 6 Court that the petitioner has already filed a suit for partition of the property in dispute much prior to filing of the execution petition, and therefore, the remedy of the respondent-decree holder lies somewhere else and not by way of the instant execution petition. In support of the aforesaid argument, learned counsel for the petitioner has placed reliance upon the judgments rendered in 'Jagdish Dutt v. Dharam Pal' 1999(2) RCR (Civil) 652; 'Kewal Singh and others v. Wadhawa Singh and another' 2010(4) RCR(Civil) 484 and 'Piara Lal and others v. Tirath Singh' 1986(1) Rent Control Reporter 257.
Learned counsel for the petitioner has further argued that in the instant case, objection petition of the petitioner has been rejected summarily without framing issues and without affording any opportunity to the parties to lead evidence in support of their respective pleas; and therefore, the impugned order deserves to be set aside on this ground also. To support his case, learned counsel for the petitioner has placed reliance upon a judgment of this Court rendered in 'M/s Woolways, Shop-cum-Office, Chandigarh and others v. Central Bank of India, Chandigarh and others' AIR 1990 Punjab and Haryana 92; 'Hem Raj Bansal v. State Bank of India' 1989 PLJ 703 and 'Santokh Singh v. Amar Kaur and others' 2006(3) RCR (Civil) 67.
On the other hand, counsel for the respondent-decree holder has vehemently contested the arguments, as raised before this Court on behalf of the petitioner, and has submitted that the first objection raised by the petitioner with regard to jurisdiction of the Court Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 7 at Chandigarh is liable to be rejected outrightly; as according to him in fact the petitioner has concealed material fact from the knowledge of this Court, as, such an objection with regard to jurisdiction of the Court at Chandigarh was raised by the petitioner before the Executing Court and the same stood repelled and rejected vide order dated 10.12.2011 passed by Mr.Jasbir Singh Sidhu, the then Presiding Officer of the Executing Court and thereafter, the review petition filed by the petitioner against the aforesaid order stood rejected vide order dated 02.05.2013 passed by Mr.Rajnish Kumar Sharma, Additional Civil Judge (Sr. Division), Chandigarh, and he is precluded from raising such an issue again in the same proceedings. Thus, the objection to the effect that the execution petition at Chandigarh cannot be filed, is not maintainable.
Learned counsel for the respondent-decree holder has further argued that tenancy rights of the petitioner would not merge with ownership rights and the landlord is entitled to evict such a tenant in execution of a decree wherein the Judgment Debtor had purchased some share of the property in dispute. He has relied upon 'T. Lakshmipathi and others v. P. Nithyananda Reddy and others' 2003(2) RCR 117; 'M/s Union Umbrella Manufacturing Co. and others v. Bhagabandei Agarwalla (Dead) by LRs Smt. Savitri Agarwalla' 2004(1) Rent Control Reporter 154; and 'Pramod Kumar Jaiswal and others v. Bibi Husn Bano and others' (2005) 5 SCC 492. Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 8 Learned counsel has also argued that no fault can be found with the impugned order, as objections of the petitioner have been rejected after giving him an opportunity of hearing and considering all the arguments, as raised. Learned counsel for the respondent has further argued that there is no dispute between the parties on the facts of the case, and thus, the Executing Court was right in law while deciding objections without framing issues and allowing the parties to lead evidence. Thus, learned counsel for the respondent-decree holder has submitted that the petition is without any merit and the same be dismissed.
I have heard learned counsel for the parties and perused the impugned judgments and other documents produced on record of the case.
The argument to the effect that the Rent Controller, Chandigarh which has passed the impugned order, has no jurisdiction to execute the decree dated 03.03.1986 passed by the Rent Controller, Delhi in favour of the respondent-decree holder, is without any merit as upon issuance of notice in the execution petition, the petitioner- judgment debtor appeared and filed an application for dismissal of execution petition on the ground that the Court has no jurisdiction. It was alleged in the application that the decree dated 03.03.1986, in respect of which the execution petition has been filed, was passed by the Rent Controller, Delhi and as such, the Court at Chandigarh has no Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 9 jurisdiction; and thus, the application be allowed and the execution petition be dismissed.
The said application was contested by the respondent- decree holder submitting that the eviction petition was initially/originally filed in the Court of Rent Controller, Chandigarh and thereafter, the same was transferred to the Rent Controller, Delhi by Hon'ble the Supreme Court at the instance of the petitioner-judgment debtor; and thereafter, against the orders of eviction passed by the Rent Controller, Delhi and dismissal of his appeal by the Appellate Tribunal, Dehli, the petitioner-judgment debtor had filed Civil Revision No.1583 of 1992 and the same was transferred to this High Court and order of dismissal of the said revision petition was also passed by this Court; and therefore, the Court at Chandigarh has jurisdiction to try execution petition.
The said application of the petitioner for dismissal of the execution petition on the ground of jurisdiction was thus dismissed by the Court of Mr.Jasbir Singh Sidhu, Additional Civil Judge (Sr. Division), Chandigarh vide his order dated 10.12.2011, observing as under:
"7. Learned counsel for the applicant/JD argued that this Court has no jurisdiction to entertain the execution petition, therefore, it is liable to be dismissed. This Court can entertain the execution only if it is transferred to this Court by the Court which is empowered to entertain the execution. In support of his arguments, learned counsel relied upon the law laid down by the Hon'ble Calcutta High Court in case bearing citation 'M/s Auto Trade & Finance Corporation v. Raj Kishore Sanganaria' 2004 (3) ICC 12.Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 10
8. Next contention of learned counsel is that the execution is not supported by certified copy of order and on this ground also, it is liable to be dismissed. In support of his arguments, learned counsel relied upon the law laid down by the Hon'ble Kerla High Court in case bearing citation 'V.N. Thampi @ Ravindran Pillai v. Y. Mathai and ors' 2006(1) RCR (Civil) 387.
9. Next contention of learned counsel is that the JD has purchased a share in the property in question during the pendency of the matter and therefore, JD has become co-sharer and execution can not be executed. In support of his arguments, learned counsel relied upon the law laid down by the Hon'ble High Court of Punjab and Haryana in case bearing citation 'Piara Lal v. Tirath Singh' 1985 (2) RLR 537. Dismissal of the execution is prayed for.
10. Learned counsel for the DH on the other hand argued that the execution petition can be filed in a Court which has actually passed a decree or a Court which can effectively execute it. In support of his arguments, learned counsel relied upon the law laid down by the Hon'ble High Court of Punjab (Full Bench) in case bearing citation 'Mehar Singh v. Kasturi Ram' AIR 1962 Punjab 394. In this mater, certain area was transferred to the jurisdiction of another Court and it was held that another Court has jurisdiction to execute the decree. On the same lines, law laid down by the Hon'ble Karnataka High Court in case 'Smt.Laxmi Nagappa Hegde v. The Karnatka Bank Ltd.' AIR 1988 Karnatka 44 is also produced. It is alleged that copy of order has been produced on record which is true copy. Certified copy is not required because passing of order is not disputed between the parties. Merely by purchasing a share in the property, a tenant does not become owner or Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 11 co-sharer and relationship of landlord and tenant does not come to an end. Therefore, it can not be said that the execution is not maintainable. In support of his arguments, learned counsel relied upon the law laid down by the Hon'ble Supreme Court in case bearing citation 'M/s India Umbrella Manufacturing v. Bhagabandei Agarwalla' 2004(1) RCR 154.
11. Arguments advanced by learned counsels for both the parties are duly considered, apart from perusing the records.
12. In Section 37 of the Civil Procedure Code, definition of the Court which passes a decree has been given and as a matter of convenience, relevant portion of the same is hereby reproduced:-
'37. Definition of Court which passed a decree The expression "Court which passed a decree", or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include-
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and '
13. In the present matter, it is not disputed that the proceedings were initiated from Chandigarh. Therefore, the Court at Chandigarh would be deemed to be the Court of first instance and final order has been passed by the Hon'ble High Court of Punjab and Haryana, Chandigarh.
Where the decree or order is passed by a Court exercising appellate jurisdiction the Court of first instance is considered the executing Court. As per the execution Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 12 petition, the petition was initially filed in the Court of Sh.Sadhu Ram Bansal, the then learned Rent Controller, Chandigarh which was a predecessor Court of this Court at that time. This fact is not denied by the respondent/JD. Hence, this Court has jurisdiction to entertain the execution petition.
14. Next objection of the JD is that the certified copy of order has not been filed which is being opposed by the DH on the ground that order is not disputed between the parties, therefore, certified copy is not required. In this regard, this Court is of the view that certified copy of order is required in view of law laid down in case 'V.N. Thampi @ Ravindran Pillai v. Y. Mathai and ors' (supra). However, the petition can not be dismissed on this sole ground. Time can be granted to the DH to produce the certified copy of order.
15. As far as the objection taken by the JD regarding the fact that he has become co-owner, that is to be considered while the execution is to be decided on merits. At this stage, in view of law laid down by the Hon'ble Supreme Court in case bearing citation 'M/s India Unbrella Manufacturing v. Bhagabandei Agarwalla' (supra), the objection, prima-facie, does not appear to be sustainable. However, it can not be decided at this stage and it is to be decided at the time of final arguments.
16. In view of above discussion, it is held that this Court has jurisdiction to entertain the present execution petition and the application is hereby dismissed. However, the DH is directed to produce the certified copy of order of learned Rent Controller, Delhi and Hon'ble High Court of Punjab and Haryana."
Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 13
It is also a matter of record that the petitioner filed a review application against the aforesaid order dated 10.12.2011 and the same was also dismissed by the Court of Additional Civil Judge (Sr. Division), Chandigarh vide its order dated 02.05.2013. Admittedly, the aforesaid orders have not been challenged by the petitioner-judgment debtor in any proceedings; thus, the petitioner at this stage cannot again raise the said issue in the same execution petition without challenging the said orders. In 'Barkat Ali and another v. Badrinarain (Dead) by LRs' (2008) 4 SCC 615, Hon'ble the Apex Court has held as under:
"The principles of res judicata not only apply in respect of separate proceedings but the general principles also apply at the subsequent stage of the same proceedings also and the same Court is precluded to go into that question again which has been decided or deemed to have been decided by it at an early stage."
At this stage, Sections 37 to 39 of the CPC may also be noticed, which read thus:
"37. Definition of Court which passed a decree The expression "Court which passed a decree", or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,--
(a) where the decree to be executed has been
passed in the exercise of appellate
jurisdiction, the Court of first instance, and Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 14
(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit where in the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.
Explanation: The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit where in the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other court; but, in every such case, such other court shall also have jurisdiction to execute the decree, if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.
"38. Court by which decree may be executed A decree may be executed either by the court which passed it, or by the court to which it is sent for execution."
39. Transfer of decree (1) The Court which passed a decree may, on the application of the decree holder, send it for execution to another Court of competent jurisdiction,--
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 15 gain, within the local limits of the jurisdiction of such other Court, or
(b) if such person has no property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or
(c) if the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or
(d) if the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court.
(2) The Court which passed a decree may of its own motion send it for execution to any subordinate court of competent jurisdiction.
(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed.
(4) Nothing in this section shall be deemed to authorise the Court which passed a decree to execute such decree against any person or property outside the local limits of its jurisdiction."
Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 16 Thus, a conjoint reading of the aforesaid Sections would clearly show that the Court of original jurisdiction, where the suit was initially filed and was transferred on some grounds, will not lose its jurisdiction to execute the decree of possession passed by the transferee Court in case the property, against which such decree of possession is sought to be executed, lies under the jurisdiction of the Court of original jurisdiction where the suit was initially filed. In fact, the provisions of Section 39(4) CPC have been inserted with effect from 01.07.2002 only to overcome the difficulty in such a situation, where the decree is passed by a transferee Court and the property, against which the decree is sought to be executed, is situated under the jurisdiction of the original Court of jurisdiction. Admittedly eviction petition was filed before the Rent Controller, Chandigarh and the same was transferred, on the request of the petitioner himself, to Rent Controller, Delhi under the orders of Hon'ble the Supreme Court of India in the peculiar facts and circumstances of the case, and thus, the decree has been passed by the Court at Delhi, which was a transferee Court of the original Court of jurisdiction at Chandigarh.
The judgment in 'Merla Ramanna v. Nallaparaju and others' (supra) is not applicable in the present case, as in the aforesaid judgment the question raised was whether the Court, which actually passed the decree, does not lose its jurisdiction to execute it by reasoning of the subject matter thereof being transferred subsequently to the jurisdiction of another Court. Whereas, in the case of 'Mohit Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 17 Bhargava v. Bharat Bhushan Bhargava and others' (supra), Hon'ble the Supreme Court was dealing with a situation wherein the Court, which passed the decree, could not have proceeded against the property situated outside its jurisdiction; rather after relying upon the provisions of Section 39(4) CPC, it was held that the Court which has passed the decree cannot proceed with the execution of such a decree against the property situated outside its jurisdiction unless such a decree is for a personal obedience by the judgment debtor. Similarly, the judgment in the case of 'Kasturi Rao and another v. Mehar Singh and another' (supra) has held that where the territorial jurisdiction of a Court is transferred to another Court, the transferee Court is competent to entertain directly an execution of the decree passed by the first Court and it is a question of pure formality that the application should be filed in the first instance in the Court of first instance.
In fact, a perusal of all these judgments would show that thrust of the Courts is that a decree is to be executed by a Court under whose jurisdiction the property in question is situated. Thus, the aforesaid judgments do not help the petitioner in any manner. There can be no doubt about one of the leading rules relating to the jurisdiction of the Courts executing decrees that, no Court can execute a decree in which the subject matter of the suit or of the application for execution, is the property, situated entirely outside the local limits of jurisdiction. In fact, the territorial jurisdiction is a condition precedent to a Court executing the decree for possession of property. In the instant Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 18 case, the petitioner has raised a technical objection that the respondent-decree holder could not have filed the instant petition directly in this Court. Otherwise, there is no dispute that the property in question is situated within the local jurisdiction of the executing Court, which has passed the impugned order and not under the jurisdiction of the Court which passed the eviction order against the petitioner. Counsel for the petitioner could not dispute the fact that even if execution petition is filed in a Delhi Court the same has to be transferred to the Court at Chandigarh for executing the decree of possession of the demised premises which is situated at Chandigarh.
At this stage, it may further be noticed that the provisions of Section 37 CPC defining the words "the Court which passed a decree"
are inclusive in nature and do not restrict the right of execution by a Court under whose jurisdiction the property is situated and who alone can execute the decree. The explanation to Section 37 CPC contemplates two courts, i.e. the Court which passed the decree and the Court which has territorial jurisdiction over the subject matter of the suit, and the execution petition can be filed in either of these two Courts. In fact, if the jurisdiction of any Court has been transferred to another Court, then both the courts will have concurrent jurisdiction to execute the decree and will be the Court of first instance for the purposes of Section 38 CPC in view of the explanation added to Section 37 CPC.Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 19
Moreover, execution proceedings being purely a matter of procedure, the meaning of expressions either "by the Court which passed a decree" or "by the Court to which it was transferred for execution", cannot be narrowed down to exclude the jurisdiction of a Court under whose jurisdiction the property against which execution is sought is situated. As a general rule, territorial jurisdiction is a condition precedent to a Court executing a decree, and neither the Court which passed the decree nor the Court to which it is sent for execution can execute it in respect of the property lying outside its territorial jurisdiction. Thus, ultimately the decree has to be executed by a Court under whose local jurisdiction the property in question is situated and even if the provisions of Section 38 CPC are to be construed strictly, in that situation also after filing the execution petition in the Court which passed such a decree, the same has to be transferred by such Court for execution to the Court under whose jurisdiction the property situates and thus, filing of such a petition in the Court which passed a decree and transferring the same to the Court where the property falls under its territorial jurisdiction, will be a mere formality. Thus, the contention of the petitioner that there is no proper presentation of the execution application at the initial stage would amount to a mere irregularity and the jurisdiction of the competent Court would not be affected by the mere fact that the execution application has reached the Court of competent jurisdiction in an irregular manner and not in accordance with the strict procedure.Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 20
At this stage, it is also useful to refer to Section 99A of the CPC, which reads thus:
"99A. No order under Section 47 to be reversed or modified unless decision of the case is prejudicially affected Without prejudice to the generality of the provisions of section 99, no order under section 47 shall be reversed or substantially varied, on account of any error, defect or irregularity in any proceeding relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case."
The aforesaid provision clearly states that no order under Section 47 CPC shall be reversed or substantially varied on account of any error, defect or irregularity in any proceedings relating to such order, unless such error, defect or irregularity has prejudicially affected the decision of the case. Nothing has been argued before this Court as to how the petitioner has been affected prejudicially in the instant case.
There is no dispute that in the instant case, property against which decree of possession is sought to be enforced is situated under the jurisdiction of Chandigarh Court and this Court alone has the jurisdiction to execute the decree in hand.
Thus, the first argument as raised is without any merit. This brings us to the next argument raised on behalf of the petitioner to the effect that the decree in question has become inexecutable against the petitioner as he has become a co-sharer of Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 21 the suit property to the extent of 19/24 shares, and therefore, the right to execute the decree to that extent has become extinct on the ground that the tenancy rights of the petitioner have been merged into his ownership rights.
The argument raised is wholly erroneous and is liable to be rejected outrightly. In 'T. Lakshmipathi and others v. P. Nithyananda Reddy and others' 2003(2) RCR 117, Hon'ble the Supreme Court, while dealing with such a situation, has authoritatively laid down that the tenancy rights would not merge with ownership rights and the owner who inducted the tenants is entitled to evict them. While holding this, Hon'ble the Supreme Court has reiterated the judgment of 'Vasudeo v. Balkishan' (2002)2 SCC 50, wherein it has been held that for applying the doctrine of merger, coalescence of the interest of the lessee and the interest of the lessor in whole of the property at the same time in one person in the same right should be there, and there must be a complete union of the whole interests of the lessor and the lessee so as to enable the lesser interest of the lessee sinking into the larger interest of the lessor in the reversion. Similarly, in 'M/s Union Umbrella Manufacturing Co. and others v. Bhagabandei Agarwalla (Dead) by LRs Smt. Savitri Agarwalla' 2004(1) Rent Control Reporter 154, Hon'ble the Apex Court, dealing with such a situation on similar facts, held that the doctrine of merger is not attracted in such a case and tenancy is not extinguished, and in order to bring the tenancy to an end, the merger should be complete i.e. interest of the landlord in its Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 22 entirety must come to vest and merge into the interest of tenant in its entirety. To similar effect is the judgment of Hon'ble the Supreme Court in the case of 'Pramod Kumar Jaiswal and others v. Bibi Husn Bano and others' (2005) 5 SCC 492.
The judgment in the case of 'Piara Lal and others v. Tirath Singh' (supra), as relied upon by learned counsel for the petitioner, is not applicable in the present case as the facts of that case are distinguishable. In that case, the question of execution of a decree of eviction was not before the Court. In fact, eviction petition filed on behalf of the landlords against the tenant was allowed by the Rent Controller but was set aside in appeal, and revision petition filed by the landlords was pending before this Court wherein the landlords have filed affidavits stating that they have sold 2/3rd share of the demised premises to the tenant and in these circumstances, the revision petition filed on behalf of the landlords for eviction of the tenant was dismissed ordering that the landlord may be entitled to seek partition. The case of 'Jagdish Dutt v. Dharam Pal' (supra) is also distinguishable as it was a case of joint decree in favour of the purchaser of undivided interest of a coparcenery property in possession of the other co-sharers, and the Hon'ble Supreme Court was not discussing the rights of a tenant who has purchased some share of the property in question during the pendency of the execution proceedings. Even the case of 'Kewal Singh and others v. Wadhawa Singh and another' (supra) is not Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 23 applicable on facts, as the said case was of a trespasser who had become co-owner of the property in dispute.
At this stage, it may also be relevant to notice that during the pendency of Civil Revision No.1583 of 1992 before this Court, admittedly the petitioner has made applications i.e. CM Nos.21333-34- CII of 2007 for bringing to the notice of the Court that he had purchased about 70 percent share of the demised premises from some of the co- sharers and on the basis of the aforesaid facts a prayer was made before Hon'ble the Supreme Court in SLP No.17146 of 2009 filed against the order dated 30.05.2009 whereby Civil Revision No.1583 of 1992 was dismissed, for deleting the names of respondents (other co- petitioners in the eviction petition) on the ground that they have sold their shares in favour of the petitioner, but the same was not accepted by Hon'ble the Apex Court. In view of the aforesaid, even the said argument raised on behalf of the petitioner is liable to be rejected.
So far as the third argument of learned counsel for the petitioner that the objection petition has been rejected summarily and without framing issues and granting opportunity to lead evidence is concerned, the same is also liable to be rejected outrightly. It may be noticed that in the instant case, there is no dispute with regard to the facts of the case. There is nothing on record to observe that the decree of eviction under question is void and was not passed by the Court of competent jurisdiction. In 'Sukhminder Singh v. Ram Kishan' 2005(4) CCC 638, it was held that issues need to be framed only when serious Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh Civil Revision No.4872 of 2013 (O&M) 24 dispute arises on the facts and circumstances of the case. Thus, before this Court, learned counsel for the petitioner is at a loss to submit as to what kind of evidence he wants to lead before the Executing Court and on what issue, as all the issues raised by him are legal issues based upon the facts which are already established on record.
At this stage, it may further be noticed that duty of the Executing Court is to give effect to the terms of the decree and it has no power to go beyond the terms. The Court must take the decree as it stands, for the decree is binding and conclusive between the parties. It may further be noticed that it is well settled that a co-owner can always maintain execution on behalf of the others, though such an argument has not been raised before this Court.
No other argument has been raised.
Thus, the present revision petition is without any merit. Dismissed.
(RAKESH KUMAR GARG) JUDGE August 26, 2013 rps Singh Rattan Pal 2013.08.29 14:19 I attest to the accuracy and integrity of this document High Court, Chandigarh