Andhra HC (Pre-Telangana)
Mohd. Azem vs Smt. Gusta Bai And Ors. on 26 July, 1996
Equivalent citations: 1996(3)ALT1040
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER P. Venkatarama, J.
1. The petitioner is a tenant, who suffered an order of eviction in R.C.No. 213 of 1987 and R.C.No. 643 of 1989. The petitioner failed in the appeals as well as in the revisions before this Court. The revision petitions filed by the petitioner Under Section 22 of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act were dismissed by my learned brother A.S. Bhate, J. on 29-2-1996 by a common judgment. While disposing of the revisions, there was no order granting time to the tenant for vacating the premises. It appears that on the next day i.e. on 1-3-1996, an oral request was made by the learned counsel for the petitioner seeking directions for grant of reasonable time to vacate the premises. Accordingly the C.M.Ps. were posted 'for being mentioned' on 4-3-1996 i.e. the next working day. On 4-3-1996 the following order was passed by the learned Judge:-
"Heard the learned Advocate for the petitioner and the respondent It is reported by the respondent that in fact the premises have been taken possession of to-day only. The contention is disputed by the learned Advocate for the petitioner.
The petitioners-tenants are granted one month's further time from to-day to vacate the premises, in case the premises have not already been vacated till to-day.
This order is passed at 2-30 P.M."
2. While so the respondents-landlords filed a petition before the Principal Rent Controller to advance the execution petition, which stood adjourned to 6-6-1996. It may be mentioned that the execution petition was filed on 28-12-1995. It was called on two occasions. On 1-2-1996 the execution petition was adjourned to 6-6-1996 in view of the order of stay granted by the High Court. On 1-3-1996 i.e., on the very next day after the C.R.Ps. were dismissed, the respondents-landlords filed a petition to advance the execution petition and to pass orders for execution of the order of eviction and to direct the Bailiff to hand over the vacant possession by evicting the petitioner. A letter addressed by the learned Counsel for the respondents who appeared in the CRPs in the High Court was filed along with the petition. The said application was allowed and the following order was passed by the Principal Rent Controller, Hyderabad on 1st March, 1996:
"Issue Eviction warrant on payment of process and the Warrant is returnable by 8-3-1996"
3. On 2-3-1996 an eviction warrant was issued by the Rent Control Court, which inter alia authorised the Bailiff to break open the lock if any put to the premises and to take police assistance if necessary. According to the report of Bailiff, the execution took place by about 1-20 P.M. on 4-3-1896 and the possession was handed over to the respondents after keeping the articles in the house aside. The receipt showing delivery of possession and a panchanama attested by the panchas and the affidavits of two persons who acted as panchas were also filed along with the report.
4. After this Court passed the order at 2-30 p.m. on 4-3-1996, it appears that a mention was made before the Rent Controller. The learned Rent Controller passed an order recalling the warrant already issued on 2-3-1996 at about 4-00 p.m. Before that order could be communicated to the Bailiff, the Bailiff returned to the Court and filed the report. Thus, as per the record which I have called for, the execution took place even before the order was passed by this Court on 4-3-1996 granting one month's time for vacation of the premises.
5. This CRP was filed on 6-3-1996. On the same day I took up the case for hearing and passed the following order:-
"Post on 8-3-1996 for Orders. Meanwhile, the petitioner will serve the notice on the respondents' counsel appearing in the lower Court Sri G.N. Lahoti.
No further steps shall be taken for execution of warrant of eviction in E.P.No. 11 of 1996 on the file of the Principal Rent Controller, Hyderabad including forceable removal or eviction of the petitioners or their belongings from the premises, for a period of two weeks from today."
6. It is not in dispute that after the delivery of possession was effected through Court and subsequent to the order passed on 6-3-1996, respondents demolished the structures. Thus, the original building which was let out to the petitioner is itself not in existence now.
7. The present CRP is filed questioning the order passed by the Rent Controller on 1-3-1996 advancing the hearing of E.P., from 6-6-1996 to 1-3-1996, on the application filed by the respondents.
8. There is no provision in the Rent Control Act or the rules made thereunder to give notice of execution petition to the respondent. Construing Rule 23 of the A.P. Buildings (Lease, Rent and Eviction) Control Rules, this Court held in A.P. Transport Company v. Ghansyamdas, 1982 (2) ALT 175 that except in a case covered by Sub-Rule (4) of Rule 23, no notice need be given to the Judgment-Debtor before the execution is ordered, even where execution petition is filed even beyond six months which is the normal time-limit prescribed under Sub-Rule (1) of Rule 23. In the present case, the E.P. was filed on 28-12-1995 soon after the CRP was disposed of ex parte. After it was restored and dismissed again, the decree-holder renewed the execution petition. Thus the E.P., filed on 28-12-1995 was within six months from the date of dismissal of the appeal by the Rent Control Appellate Court on 16-6-1995. It is an undisputed proposition that the order of the primary authority (Rent Controller) merges into the order of the appellate Court. Hence the question of condonation of delay under the proviso to Rule 23(1) does not arise. It is therefore evident that the execution petition was filed within time and no notice is required to be given to the judgment debtor in the light of the provisions contained in Rule 23, more so when it was filed within the period of six months as laid down in Sub-Rule (1) of Rule 23. If we take the analogy of Order XXI Rule 22 C.P.C, a notice is required to be given to the person against whom execution is applied for, only if the application is made two years after the date of the decree. Thus, the execution of decree without notice to the respondent or the defendant is not something unknown to civil law. On the interpretation placed on Rule 23 by this Court in the aforementioned decision, no notice is required to be given to the person against whom the execution is applied for. Whether even in a case where the application is filed beyond six months, notice need not be given and whether the view taken in the said decision requires reconsideration is not a matter, which calls for examination in this case, because the application was filed within six months, whether we take the appellate Court's order or the Revisional Court's order as the starting point of limitation. Thus, when no notice is required to be given in the execution petition, I do not think that the Rent Control Court has an obligation to give notice in the petition for advancement. However, having regard to the fact that the execution petition was not scheduled to be heard but for the advancement petition and in view of the statement made regarding the dismissal of the CRP without granting time, it would have been prudent on the part of the Rent Controller if he had called upon the decree-holder to furnish a copy of the judgment of the High Court or directed issuance of notice to the respondents. But, it cannot be said that the Rent Controller had committed an error of jurisdiction or an obvious illegality in advancing the hearing of execution petition so as to call for Interference Under Section 115 of Civil Procedure Code.
9. I do not therefore see no merit in the C.R.P. The C.R.P. is dismissed. No costs.
10. The learned counsel for petitioner submits that despite the interim order granted by this Court on 6-3-1996, the structure itself was demolished and it amounts to contempt of Court. It is also contended that the respondents acted in unseemly haste in executing the decree knowing fully well that the C.R.P. was posted 'for being mentioned' on 4-3-1996 for the purpose of requesting the Hon'ble Judge to grant time for eviction. It is open to the petitioner to take appropriate steps under the Contempt of Courts Act if he thinks that there was violation of the order of this Court or the action of the respondents amounted to interference with the due course of justice. It is also open to the petitioner to seek compensation for deprivation of accommodation till the expiry of one month's time granted by this Court on 4-3-1996. It is of course open to the petitioner to seek appropriate orders for restitution from the Apex Court in case he succeeds in the appeal that may be filed by him. But, in this CRP, I cannot grant any relief in view of the completion of the process of execution and the demolition of structure, apart from the fact that the scope of controversy in this CRP is limited to the legality of the Order advancing the date of hearing of the Execution Petition.