Delhi District Court
Ex. No.51/2012 Late Smt. Urmila Through ... vs . Sh.Gandhi Tyagi Page 1/9 on 29 May, 2015
IN THE COURT OF SH. NAVEEN K. KASHYAP,
COMERCIAL CIVIL JUDGE-CUM ADDITIONAL RENT
CONTROLLER,WEST DISTRICT, TIS HAZARI COURTS COMPLEX ,
DELHI.
Ex. No. 51/2012
Smt. Urmila (Since deceased)
Through her LRs:-
1. Smt. Sharda Tyagi,
W/o Sh. Basant Tyagi,
D/o Smt. Urmila and Sukhbir Singh
R/o Hapur, Ditrict Bullandshahar, (UP).
2. Smt. Pushpa Tyagi,
W/o Sh. Anil Tyagi
D/o Smt. Urmila and Sukhbir Singh,
R/o F-338/A, Sudershan Park,
Delhi.
3. Sh. Anil Tyagi,
S/o Sh. Sukhbir Singh,
R/o WZ-471, Basant Darapur,
New Delhi. .....Decree Holders
VERSUS
Sh. Gandhi Tyagi,
S/o Sh. Mahanand Tyagi,
WZ-480-A, Basai Darapur,
New Delhi-110015. ....... Judgment Debtors
ORDER
29/05/2015 Present: Sh. Anil Tyagi, LR of original DH.
Sh. Gandhi Tyagi, JD in person.
Ex. No.51/2012 Late Smt. Urmila through LRs Vs. Sh.Gandhi Tyagi Page 1/91. Vide present order the objections dated 23/08/2013 filed by Judgment Debtor, Sh. Gandhi Tyagi are decided.
2. By such objections in nutshell it is stated by JD that present DH has no locus to file the present execution petition, as their mother late Smt. Urmila has admittedly already transferred all her right in favour of one Sh. Anil Kumar Tyagi s/o Govind Prasad Tyagi by virtue of Will and GPA.
It is further claimed that DH has not placed on record any document of their ownership in the suit property as such present decree cannot be executed.
It is further stated that dispute of ownership of suit property is pending adjudication before Sh. Ajay Goel, Ld. ADJ, Tis Hazari Court in P.C. No. 218/1994 titled "Gandhi Tyagi vs. State & Ors" wherein Smt. Urmila was made a party but as she transferred her right to Sh. Anil Kumar Tyagi s/o Govind Prasad Tyagi, therefore, such person is substituted in place of deceased Smt. Urmila.
It is further stated there are three court cases including the present execution proceedings pending between the same parties regarding the same suit property.
As such it is prayed by the objector/JD that till adjudication of the probate case Sh. Ajay Goel, Ld. ADJ, Tis Hazari Court in P.C. No. 218/1994 titled "Gandhi Tyagi vs. State & Ors.", the present execution petition may be stayed.
3. The DH side filed their reply dated 07/09/2013. It is claimed by DH Ex. No.51/2012 Late Smt. Urmila through LRs Vs. Sh.Gandhi Tyagi Page 2/9 side that present objection petition is an abuse of process of law as it goes against the settled principle of law that executing court cannot go beyond the decree. It is further stated that in present case even the appeal filed by JD is dismissed and as such present objections are misconceived. It is further stated that appeal filed by the JD against the order of this court was dismissed and Sh. Anil Kumar Tyagi was a party in said proceeding. It is further stated that filing of probate petition would not debar the DH in executing the decree. As such it is prayed that present objections be dismissed with cost.
4. Arguments in detail already heard on such objections filed by JDs. Further, I have gone through the record including the judgments passed by the appellant court relating to the judgment in question and in connected probate case.
5. Before proceeding further, it would be pertinent to reproduce the Section 25 of D.R.C. Act :
25. Vacant possession to landlord- Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any person whatsoever and any order is made by the Controller under this Act for the recovery of possession of such premises the order shall, subject to the provisions of section 8, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such person therefrom:
Provided that nothing in this section shall apply to any persons who has an independent title to such premises.
6. As far as law relating to objections under the Delhi Rent Control Act is Ex. No.51/2012 Late Smt. Urmila through LRs Vs. Sh.Gandhi Tyagi Page 3/9 concerned, the same is well settled. Section 42 of the DRC Act provides that an order for eviction 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.
7. Further, the basic principle of the procedure laid down in Order XXI rules 35 and 36 Civil Procedure Code is that a decree or an order is binding only on the parties and not on a person who is not a party to the proceeding in which the order is passed. Similarly, such an order can be executed only against the person against whom it is passed including all persons who claimed through the said judgment-debtor.
8. Further under rule 99 of order XXI of the Civil Procedure Code, a person in possession of the property on his own account and on account of some person other than the judgment-debtor can resist the execution of a decree for possession on the ground that he was not bound by the decree and cannot be dispossessed in execution thereof. If he is dispossessed, under rule 100 of Order XXI he can claim to be put back into possession. In view of sections 37(2) and 42 of the Act, the analogy of the above provisions of the Civil Procedure Code has to be applied to a proper construction of Section 25.
09. Section 25 of the Act gets added meaning in the context of Sections 17 and 18. Unless a person in possession of the premises or part thereof Ex. No.51/2012 Late Smt. Urmila through LRs Vs. Sh.Gandhi Tyagi Page 4/9 intimates to the landlord by giving the requisite notice in writing that he was in possession as sub-tenant, he needs not be made a party to the application for eviction; if he does comply with S. 17 he would incur the risk of being evicted by an order of eviction obtained against the tenant alone.
10. A person in possession of the premises or part thereof, under a title independently of the landlord, would not resort to the procedure under Section 17 for the simple reason that he is not a sub-tenant but claims independently, of the landlord. It is, therefore, claimed that under colour of an order of eviction obtained against the tenant, a person in possession of the property under an independent title could not be dispossessed. To let this happen would be to invest the order of eviction passed by a Controller with even graver consequences than of a decree of a civil court; this is not permissible. Section 42 of the Act of 1958 only makes an order of eviction passed by the Controller equivalent to, but not higher than, a decree of a civil court for the purpose of executing that order.
11. Further, rules 97 to 102 of Order 21 of the Code of Civil Procedure relate to the procedure to be followed when there is obstruction to the execution of a decree for possession. When there is resistance to delivery of possession, the decree holder may apply under Order 21 Rule 97 for obstruction to be removed and possession delivered to the decree holder. The executing court shall then enquire into the said application and if it is satisfied that the resistance or obstruction is occasioned without any just cause by the judgment-debtor or by some other person at his instigation it Ex. No.51/2012 Late Smt. Urmila through LRs Vs. Sh.Gandhi Tyagi Page 5/9 shall direct that the applicant be put in possession of the property. But if it is satisfied that the resistance or obstruction was caused by any person other than the judgment debtor claiming in good faith to be in possession of the property of his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application under Order 21 Rule 99.
12. Order 21 Rule 100 provides for cases where a person in possession, other than the judgment-debtor, is dispossessed of immovable property by the decree holder; he can apply to the court for restoration of his possession and this also would be enquired into and restoration would be ordered under Rule 101 if the claim is bonafide. Order 21 Rule 103 provides that such orders passed under the above said rules would be final unless a suit is filed to establish the right which the person claims to the personal possession of the property.
13. There could be no departure from the Civil Procedure Code in the matter of executing orders of eviction, except to the extent permitted by Section 25 of DRC Act.
14. The further question whether applicant not claiming title independent of the landlord could be dispossessed by the Rent Controller seems, therefore, to admit of only one answer, namely, in the affirmative -he could be dispossessed. The person claiming title independently of the landlord, however, could not obviously be evicted on foot of an order obtained against the landlord's tenant in a proceeding to which the person so claiming independent title was not made a party. It is to meet with this situation that Ex. No.51/2012 Late Smt. Urmila through LRs Vs. Sh.Gandhi Tyagi Page 6/9 the above provision has been introduced into S. 25 which, but for the proviso, would make an order for eviction obtained by a landlord against the tenant binding on all persons in possession of the premises.
15. It is thus, clear that if a person claimed a title independent of the landlord, he could apply under Section 25 and request the Rent Controller to adjudicate whether he was in possession in exercise of such independent title.
16. Further, the protection provided under this section is available to the person who is having independent right in the premises and not simply the possession. The proviso to the section makes it very clear that the protection, which is provided, is not to mere occupation but occupation coupled with independent title. Therefore, even a long possession can not be protected under this section if there is no independent right in the premises. Mere possession for a long time of premises belonging to another person does not save the person from eviction.
17. Further, in any case, subject to provision of Sec. 25 of D.R.C. Act, sub-tenant is also bound by the decree of eviction.
18. In view of above mentioned position of law and having regard to the facts of the present case, I do not find any force in the objections filed by the JDs/objectors. The stand taken by present JD/ objector is nothing new. Same is also clear from a bare reading of appellant court judgment relating to the present petition dated 09/08/2011, RCT No. 34/08 titled "Gandhi Tyagi Ex. No.51/2012 Late Smt. Urmila through LRs Vs. Sh.Gandhi Tyagi Page 7/9 vs. Urmila through LR" passed by Ld. District Judge and ASJ (west)/ ARCT, Delhi, Sh. O.P. Gupta, particularly para no. 2, 3, 5, 8, 9 to 13 thereof.
Further, although, as also rightly stated by learned counsel for DH, merely the pendency of probate case relating to same suit property is not a ground for stay of present execution proceedings. In any case, admittedly at present such probate case has already been dismissed vide order dated 08/01/2013 by Sh. Ajay Goel, Ld. ADJ -12 (central), Delhi. Further it is pertinent to note that in any case what is prayed by objector/ JD in present objections is that present execution proceedings be stayed till pendency of such probate petition, which are already decided at present by such trial court.
Further, this is rightly submitted by DH side that in any case this executing court can not go beyond decree, as stand merged in the learned appellant court order dated 09/08/2011 mentioned above.
19. It appears that now when the decree holder wants to enjoy the fruits of his decree, the objectors, who is no one else but the respondent in such main petition and was fully aware about the main petition, has filed the present objections which does not have any force in law. As such the present objections filed by the objector/ JD are liable to be dismissed and dismissed accordingly.
20. Further, as per record there is no stay against present proceedings. Thus in view of the above, issue warrant of possession with regard to the tenanted premises of property bearing no. WZ-480A, Basai Darapur, Ex. No.51/2012 Late Smt. Urmila through LRs Vs. Sh.Gandhi Tyagi Page 8/9 New Delhi as shown in red in the site plan Ex. AW-1/9 (/AW-1/1) in favour of the DH/petitioner and against the JD/respondent as per the certified copy of the site plan on filing of PF.
It is further clarified that although such certified copy of site plan bears the Exhibit number "AW-1/9", whereas in the order of trial court dated 21/12/2006 (as well as in present execution proceedings) same is mentioned as EX "AW-1/1", but it appears to be a mere clerical mistake as it is the only site plan in present case and there is no objection to the same even by the JD side.
DH shall file an affidavit to the effect that there is no stay or appeal pending on the execution of the eviction order. Concerned SHO is directed to provide police aid and assistance including lady police officer, if required, to the Bailiff for execution of warrant of possession.
DH is directed to appear before Ld. ACJ on 05/06/2015 and for report before this court on 10/07/2015. Steps be taken within two days. Copy of this order be given dasti to both the parties.
Announced in the open court on 29/05/2015.
(This order contains 9 pages) (Naveen K. Kashyap) Commercial Civil Judge-cum-
Additional Rent Controller, West District, THC/Delhi.
Ex. No.51/2012 Late Smt. Urmila through LRs Vs. Sh.Gandhi Tyagi Page 9/9