Delhi High Court - Orders
Masihi Sahitya Sanstha vs Absterge Real Estate Pvt. Ltd on 14 August, 2025
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.R.P. 230/2025 & CM APPL. 46421-46424/2025
MASIHI SAHITYA SANSTHA .....Petitioner
Through: Mr. Sanjay Dewan, Sr. Adv. with Mr.
M. Qayam-Ud-Din, Ms. Unzila
Fatima, Mr. Anish Dewan, Ms.
Garima Verma, Ms. Kashish Jain and
Ms. Vedica Gupta, Advs.
versus
ABSTERGE REAL ESTATE PVT. LTD. .....Respondent
Through: Mr. Rajesh Yadav, Sr. Adv. with Mr.
Akshay Chandra, Mr. Aditya
Chandra, Mr. Vikas Sharma and Mr.
Utkarsh Bhanu, Advs.
CORAM:
HON'BLE MS. JUSTICE TARA VITASTA GANJU
ORDER
% 14.08.2025
1. The present Petition has been filed under Article 227 of the Constitution of India, 1950 impugning an order dated 26.07.2025 passed by the learned ACJ/CCJ/ARC, NDD, Patiala House Courts, New Delhi [hereinafter referred to as "Impugned Order"] in Execution proceedings No. Ex.344/2025 captioned Absterge Real Estate Pvt Ltd v. Masihi Sahitya Sanstha.
2. The matter has been received on transfer from the Roster Bench after directions were passed for conversion of these Petitioners into Civil Revision Petitions.
3. By way of the Impugned Order, two Applications have been decided. The first Application is an Application under Section 151 of the Code of Civil Procedure, 1908 [hereinafter referred to as "CPC"] in RC ARC No. 14/2023 captioned Absterge Real Estate Pvt. Ltd. v. Masihi Sahitya This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/08/2025 at 22:01:53 Sansthan seeking recall and to set aside the judgment and order dated 24.12.2024 passed by the Court of the learned Rent Controller [hereinafter referred to as "24.12.2024 Judgment"] in the following manner:
"(i) the Judgement and order dated 24.12.2024 be set aside by this Hon'ble Court by recalling the said. order by this Hon'ble Court and the Respondent may be granted unconditional leave to contest the Eviction Petition of the Petitioner..."
3.1 The challenge in the present Petition is to an order passed in an Application/Objections filed under Order XXI Rule 58 read with Section 47 and 151 of the CPC filed in Execution proceedings No. 344/2025 captioned Absterge Real Estate Pvt. Ltd. v. Mashi Sahitya. The prayer in this Application/Objections [hereinafter referred to as "Objections"] is almost similar to the First Application and is set out below:
"(i) That Judgement and order dated 24.12.2024 be ignored by this Hon'ble Court as a nullity and the present execution be dismissed..."
4. As stated above, the Impugned Order is a composite order which has disposed of the First Application [which was filed before the learned Rent Controller] and has finally disposed of the execution proceedings and also dismissed the Objections that were filed by the Petitioner/Judgment Debtor.
5. The 24.12.2024 Judgment has been passed allowing an Eviction Petition No. RC ACR 14/2023 captioned Absterge Real Estate Pvt Ltd v. Maishi Sahitya Sanstha for the premises i.e. commercial flat/floor on the front portion of first floor (facing Janpath), constructed at Plot no.33, Block no.134, also known as 70, First Floor, Janpath, New Delhi-110001 [hereinafter referred to as "subject premises"].
6. Two separate Petitions were filed challenging the Impugned Order. C.R.P. 229/2025 which sought to challenge the order in the First Application This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/08/2025 at 22:01:53 praying for recall of the 24.12.2024 Judgment, has been dismissed by an order dated 14.08.2025 passed by this Court. The present Petition is a challenge to the dismissal of the Objections which have been filed in the Executing Court by the Petitioner.
7. A Coordinate Bench of this Court has on 31.07.2025 passed an order directing that the Petition be converted to Civil Revision Petition in the following terms:
"1. After hearing arguments for some time, learned Senior counsel for petitioner, on instructions, submits that in view of the Mohd. Arshad and Others vs. Syed Mohd Yahaya Nizami:2024 SCC OnLine Del 7173, the present petitions which have been filed under Article 227 of Constitution of India, be rather converted into Civil Revision Petitions under Section 115 CPC.
2. In view of the above, while directing that the present petitions be converted into Revision Petitions under Section 115 CPC, the same, subject to the order of the Hon'ble the Chief Justice, be placed before the learned Roster Bench dealing with such Revision Petitions on 01.08.2025."
8. Learned Senior Counsel for the Petitioner/Judgment Debtor submits that after filing of their Petitions, in pursuance of the execution proceedings, the possession of the premises in issue have been taken over by the Respondent/Decree Holder on 31.07.2025. This position is not disputed by the Respondent.
9. Learned Counsel for the Respondent submits that a challenge to objections under Order XXI Rule 58 of the CPC is not maintainable in terms of Order XXI Rule 58(4) of the CPC and only an Appeal can be filed in terms of sub-Rule (4) to Rule 58 of the CPC. Reliance is placed on Order XXI Rule 58 of the CPC which is set out below:
"ORDER XXI - EXECUTION OF DECREES AND ORDERS
58. Adjudication of claims to, or objections to attachment of, property--
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/08/2025 at 22:01:53 (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained:
Provided that no such claim or objection shall be entertained--
(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or
(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.
...
(3) Upon the determination of the questions referred to in sub- rule (2), the Court shall, in accordance with such determination--
(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or
(b) disallow the claim or objection; or
(c) continue the attachment subject to any mortgage, charge or other interest in favour of any person; or (d) pass such order as in the circumstances of the case it deems fit.
(4) Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree."
[Emphasis supplied] 9.1 Learned Senior Counsel for the Petitioner also relies on the judgment of the Coordinate Bench of this Court dated 31.08.2018, in Gautam Modi v. Pravin Chandra Modi (Deceased) Thr Lrs.1, which while discussing the provisions of Order XXI Rule 58 has held that that not all orders adjudicating the Application/Objections have been conferred the status of a decree for an Appeal to lie thereunder. Order XXI only makes orders under Rules 46A, 58 and 103 appealable and in the circumstances as set out there under. The relevant extract is reproduced below:
12018 SCC Online Del 11197 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/08/2025 at 22:01:53 "13. I have in Sumeet Saluja v. A.K. Hab Europe BV, 2018 SCC OnLine Del 10072 dealt with the aspect of maintainability of appeals from orders in Execution and have held:
"19. This Execution First Appeal, even otherwise is not maintainable. All orders made in the course of the execution or adjudicating objections under Section 47 of the CPC have not been conferred the status of a decree, for an appeal to lie thereagainst. The definition of a decree under Section 2(2) of the CPC does not include an order on objections aforesaid preferred by the appellant. Though Section 2(2) of the CPC, as it stood prior to the amendment of CPC of the year, 1976, included in the definition of decree, the determination of any question within Section 47 of the CPC but vide amendment of the CPC of the year 1976, determination of any question within Section 47 is no longer a decree. Else, Order XXI, only in Rules 46H, 58 and 103 makes the orders thereunder appealable. Under Rule 46H, orders under Rules 46B, 46C or 46E i.e. against a garnishee or third persons, have been made appealable. Under Rule 58, invoking which this appeal has been preferred, adjudication of claims to, or objections to attachment of property on the ground that such property is not liable to such attachment has been conferred the same status as a decree. Under Rule 103, an adjudication under Rules 98 and 100 adjudicating possession of immovable property have been conferred the status of a decree. The objections raised by the appellant/judgment-debtor, against dismissal of which this appeal has been preferred, do not fall in any of the said categories. A right to appeal is otherwise not a natural right and has to be specifically conferred. No right of appeal has been conferred against an order of dismissal of objections as aforesaid and invocation of the appellate remedy thereagainst thus is even otherwise misconceived."
[Emphasis supplied]
10. Learned Senior Counsel for the Petitioner, on instructions, submits that the nomenclature on these Objections has been used inadvertently. He submits that Objections filed by the Petitioner be treated as under Section 47 and 151 of the CPC and not under Order XXI Rule 58 of the CPC.
11. Learned Senior Counsel for the Respondent in response draws attention of the Court to following paragraphs of the Objections to submit that the averments in the Objections under challenge are such that Section This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/08/2025 at 22:01:53 47 of the CPC has not been invoked. The relevant extract of the Objections relied upon is set out below:
"11. That alongwith the Eviction Petition the Decree Holder filed the so called alleged work order (due to which the Decree Holder wanted eviction of the Judgement Debtor) which it had allegedly obtained from one DSCL-Fengshun-Wabag-Consortium dated 03.04.2023.
xxxx xxxx xxxx xxxx
13. That this Hon'ble Court was pleased to dismiss the leave to defend application of the Judgement Debtor vide its Judgement and order dated 24.12.2024 as the Judgement Debtor's although stated that the alleged work order claimed as a bonafide requirement by the Decree Holder was non-existent but could not produce material to substantiate the said averment and now subsequently the Judgement Debtor has come into possession of the material which was concealed by the Decree Holder from this Hon'ble Court and the Judgement Debtor which shows that the said alleged work order is a fake and/or forged document and the Decree Holder has got the leave to Defend application of the Decree Holder dismissed and got its eviction petition allowed by playing fraud on this Hon'ble Court by concealing material facts from this Hon'ble Court and the Judgement Debtor and/or producing fake/forged document. That the Judgement Debtor most respectfully submits that in view of the facts set out hereinbelow a triable issue is raised and the Judgement Debtor is entitled to leave to defend and contest the eviction petition and it is pertinent to note that this Hon'ble Court has in its judgement dated 24.12.2024 not considered the above objection of the Judgement Debtor regarding the falsity of the above alleged work order due to the fraud played by the Decree Holder. The detailed description of the same is given underneath:
...
(xxi) That further perusal of the abovesaid alleged work order dated 03.04.2023 shows that it's alleged "Man Power (Requirement)" as set out in para E of the alleged work order is, the following:
"Minimum Manpower requirement for the said work would be 100 nos out of which minimum 30 manpower would be needed to be located in Corporate Office and balance would at site offices."
(xxii) That now subsequently the facts which had been concealed by the Decree Holder from this Hon'ble Court and from the Judgement Debtor at the time of passing of order dated 24.12.2012 have come to the knowledge of Judgement Debtor on 12.06.2025 when the Decree Holder inspected the records of the decided matter in the Hon'ble high This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/08/2025 at 22:01:53 Court of Delhi, as third party, and on subsequent dates and the Judgement Debtor has been able to obtain the details thereof being
(a) of Arbitration Petition No. 97/2023 and 98/2023 which the above DSCL-Fengshun-Wabag-Consortium had filed against Delhi Jal Board and Engineers India Limited wherein the details of what are the contours of Interceptor Sewer Project, of Delhi Jal Board Package-4 and Package-S qua which the above said alleged work order is allegedly given to the Decree Holder and (b) the Memorandum of Association of the Decree Holder Company which sets out the objects of the Decree Holder Company. These both documents read together prove that the above alleged work order is a sham and bogus document created for the purpose of ousting the Judgement Debtor from the tenanted premises."
[Emphasis supplied] 11.1 Learned Senior Counsel for the Respondent submits that these contentions can only be considered by the Court under the provisions of Section 25B(8) of the DRC Act in RC. REV. 83/2025 captioned Masihi Sahitya Sanstha v. Absterge Real Estate Pvt. Ltd.
12. The Coordinate Bench of this Court in the judgment of Mohd. Arshad and Others vs. Syed Mohd Yahaya Nizami2 while deciding the question as to whether the tenant ought to have filed Revision Petition under Section 115 of the CPC against an order dated 10.03.2022 passed by the learned Rent Controller or whether an Appeal is maintainable has held that the right to file an Appeal is not available in view of the bar given in the proviso to Section 25B(8) of the DRC Act. The relevant extracts of Mohd. Arshad case are reproduced herein as follows:
26. There is no scope of debate that the appeal would be barred if one was to challenge order of eviction, based on a petition on the ground of bona fide requirement. In any such situation, the proviso attached to Section 25-B(8) would immediately come into play.
xxx xxx xxx
37. Moreover, the execution cannot be divorced from the eviction 2 2024 SCC OnLine Del 7173 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/08/2025 at 22:01:53 proceedings.
38. The execution is merely a procedure prescribed for reaping fruits of decree. Therefore, if after the culmination of trial of any such eviction petition, there is a bar in filing appeal, such bar should continue to operate and exist while dealing with execution of any such decree. More so, while disposing of the abovesaid objection petition, the learned Controller also, simultaneously, issued warrants of possession. Therefore, for all practical purposes, the order in question is akin to order for recovery of possession and, therefore, it cannot be said that the abovesaid proviso attached to sub-section (8) of Section 25-B of the DRC Act, would not be applicable.
[Emphasis Supplied] 12.1 In addition, the Coordinate Bench has in the Mohd. Arshad case also held that even if an order is not actually an eviction order but has shades and trapping of an eviction order by directing issuance of warrants of possession, a Petition under the provisions of Section 25B(8) of the DRC Act would not be maintainable. Paragraph 55 of the Mohd. Arshad case is set out below in this behalf:
"55. After carefully delving on all the attendant facts and circumstances and in view of foregoing discussion and while ensuring utmost care and abundant caution in interpreting the relevant statutory provisions, the picture which emerges out goes on to suggest that right to appeal is not available to the tenants herein as the above bar given under proviso attached to section 25B (8) of DRC Act continues to exist in context of the proceedings herein. The order in question, even if not actually an order of eviction, has all the shades and trappings of eviction order, as it even directs issuance of warrant of possession. Such interpretation seems not only rational but also purposive one, in complete synchronization with the legislative intention."
[Emphasis supplied]
13. Thus, the Coordinate Bench has based on the Mohd. Arshad case passed an order converting the Petition into a Civil Revision Petition transferring the matter to this Court.
14. Given these facts, the issues which require consideration by the Court are:
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/08/2025 at 22:01:53
(i) Whether the Impugned Order can be challenged in a Petition under the provision of Section 115 of the CPC or under Article 227 of the Constitution of India or would an Execution First Appeal be maintainable in view of the Application/Objections filed;
(ii) Whether the Petitioner has already exercised its remedy by availing of the remedy under Section 25B(8) of the DRC Act; and
(iii) Whether the findings in paragraph 55 of the Mohd. Arshad case which are reproduced in paragraph 12.1 above would also cover Execution Appeals which are subject matter of challenge under Order XXI Rule 58 of the CPC or related provisions.
15. Learned Senior Counsel for the parties jointly request for some time to file their respective brief note of contentions in the matter. 15.1 Let the parties file their brief note of contentions in the matter, at least three days before the next date of hearing, along with the compilation of judgments, if any, they wish to rely upon. All judgments sought to be relied upon shall be filed with an index which also sets out the relevant paragraph numbers and the proposition of law that it sets forth.
16. List on 08.09.2025.
17. The parties will act based on the digitally signed copy of the order.
TARA VITASTA GANJU, J AUGUST 14, 2025/r/ha This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/08/2025 at 22:01:53