Delhi District Court
Man Singh vs Shiv Rani on 16 January, 2025
IN THE COURT OF MR. SANJAY GARG-I
PRINCIPAL DISTRICT & SESSIONS JUDGE,
CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
RCT No. 50/2018
CNR No. DLCT01-006101-2018
Sh. Maan Singh
S/o Late Sh. Jasbir Singh,
R/o 2868, Chahelpuri, Kinari Bazar,
Chandni Chowk, Delhi-110006.
........Appellant
Versus
1. Smt. Shiv Rani (now deceased)
W/o Late Sh. Shamsher Singh
2. Sh. Rajender Kumar (now deceased)
Through LRs-
A. Smt. Rekha (Widow)
B. Smt. Uma Bharti (Married Daughter)
C. Smt. Sharda (Married Daughter)
D. Sh. Siddharth Singh (Son)
3. Smt. Veena
W/o Late Vijay Kumar
S/o Late Shamsher Singh
4. Sh. Anand Singh
5. Sh. Uttam Singh
6. Sh. Kishan Singh (since deceased)
All S/o Late Vijay Kumar
R/o 2893, 1st Floor, Kinari Bazar,
Chahalpuri, Delhi-110006.
...... Respondent
Digitally signed
by SANJAY
SANJAY GARG
Date:
GARG 2025.01.16
15:02:13
+0530
RCT-50/2018 Maan Singh Vs Shiv Rani through LRs Page 1 of 8
Date of filing of appeal : 04.05.2018
Date of arguments : 09.12.2024
Date of Judgment : 16.01.2025
JUDGMENT
1. Vide this judgment I am deciding appeal under Section 38 of the Delhi Rent Control Act, 1958 (hereinafter referred as "the DRC Act") whereby vide impugned order dated 18.04.2018, the application filed by respondents under Order XXII Rule 4 r/w Sec.151 CPC was allowed.
FACTUAL BACKGROUND
2. The brief facts of the case is that an eviction petition u/s 14(1)(e) of DRC Act was filed by respondent no.1 against the grandfather of the appellants namely Late Sh. Sher Singh in respect of one shop bearing no.2895 on ground floor of premises bearing no.2893 to 2899, Chehalpuri, Kinari Bazar, Delhi-06. The said eviction was decreed vide order dated 17.08.2011. Against the said eviction order Sh. Sher Singh had preferred an appeal before Hon'ble High Court of Delhi. During the pendency of said appeal, Sh. Sher Singh had expired on 03.01.2014 and the said appeal was dismissed by Hon'ble High Court of Delhi. Thereafter, appellants received summons of the execution petition no.56/2014 filed by the respondents. The respondents also filed an application under Order 22 Rule 4 CPC for impleadment of present appellants in the said execution petition in place of deceased Sher Singh. Appellants had filed reply to the Digitally signed by SANJAY SANJAY Date:
GARG RCT-50/2018 Maan Singh Vs Shiv Rani through LRs Page 2 of 8 GARG 2025.01.16 15:02:22 +0530 said application on 14.09.2015. Thereafter, Ld. Trial Court vide impugned order dated 18.04.2018 had allowed the said application. Hence, the present appeal.
GROUNDS OF APPEAL
3. The impugned order has been assailed on various grounds, primarily on the points mentioned below:-
i) The impugned judgment has been passed against the facts and law on record, hence not maintainable.
ii) The Ld. Trial Court has given various erroneous findings:-
a) Ld. ARC has failed to consider that the application filed by the DH/respondents is hopelessly time barred as the respondents know about the demise of Sher Singh on the same day i.e. 03.01.2014 because respondent no.1 was residing in the same property.
b) The impugned order is not maintainable as Order 22 Rule
4 CPC applies only in respect of suit and not in respect of execution petition. This application is itself contradictory and hit by Order 22 Rule 12 CPC. Besides this, the application is also hit by Section 50 CPC.
ARGUMENTS
4. I have heard Ms. Kanika, Ld. Proxy counsel for appellant and Sh. Ashish Aggarwal, Ld. Counsel for respondents. Written arguments were filed on behalf of appellant as well as on Digitally signed by RCT-50/2018 Maan Singh Vs Shiv Rani through LRs Page 3 of 8 SANJAY SANJAY GARG Date:
GARG 2025.01.16
15:02:30
+0530
behalf of respondents no. 2 to 6. In support of his submissions, Ld. Counsel for the respondent has filed judgments viz- Sabeeda Beevi Vs Nazeema Thaha: 2013 (5) RCR Civil, Kerala High Court; Manju Devi Vs Prem Prakash & Ors: 2006 (2) RCR Civil, (P & H); Uthirapathi Vs Ashrab Ali & Ors.: AIR 1998 Supreme Court 1168 and Mohammad Aleem Vs Maqsood Alam & Ors.: AIR 1989 Rajasthan 43.
5. Ld. Counsel for the appellant has reiterated the averments made in the appeal. The main contention raised by Ld. Counsel for the appellant is that the application under Order 22 Rule 4 CPC applies only in respect of suits and not in respect of execution petition. Hence, the application is hit by Order 22 Rule 12 CPC and also by Section 50 CPC and the impugned order is liable to be set aside.
6. On the other hand, Ld. Counsel for respondents submitted that there is no illegality or infirmity in the order passed by Ld. ARC. He submitted that on 19.11.2014 the respondents/DH came to know from the counsel of appellant before Hon'ble High Court of Delhi in RC.Rev. No.87/2012 titled 'Sher Singh Vs Shiv Rani & Ors." that Sher Singh/JD had expired on 03.01.2014. The said appeal filed by Sher Singh before Hon'ble High Court against the eviction order u/s 14(1)(e) of DRC Act was abated on 19.11.2014. He submitted that appellants have already filed objections in the execution which are pending for disposal. Even the appeal u/s 25(B)(8) of DRC Act filed by Sher Singh before Hon'ble High Court was Digitally signed by SANJAY SANJAY Date:
GARG GARG 2025.01.16 15:02:38 RCT-50/2018 Maan Singh Vs Shiv Rani through LRs Page 4 of 8 +0530 dismissed as abated and also for non prosecution on account of non payment of costs. By filing the present appeal, appellants are trying to delay the proceedings before executing Court, hence the present appeal may be dismissed with exemplary costs u/s 35A of CPC.
ANALYSIS AND FINDINGS:-
7. One of the main contention raised on behalf of appellant is that application filed by the respondent/DH is hopelessly time barred as respondents knew about the demise of Sher Singh on the same day i.e. 03.01.2014 because respondent no.1 was residing in the same property. This contention is denied by Ld. Counsel for the respondents stating that on 19.11.2014 respondents came to know about the death of Sher Singh on 03.01.2024 from the counsel for the appellant before Hon'ble High Court in RC. Rev. No. 87/2012 titled 'Sher Singh Vs Shiv Rani & Ors.' It is also denied by Ld. Counsel for the respondents that respondent no.1 was residing on the same property where deceases Sher Singh used to reside.
8. There is no reason to believe the plea of the appellant that respondent no.1 and deceased Sher Singh were residing on the same premises and respondents have come to know about the demise of Sher Singh before 19.11.2014. It is admitted case of appellant that the said revision filed by Sher Singh before Hon'ble High Court got abated on 19.11.2014. I thereby found no substance in the plea raised by Ld. Counsel for Digitally signed the appellant.
by SANJAY SANJAY GARG Date:
GARG 2025.01.16 15:02:46 +0530 RCT-50/2018 Maan Singh Vs Shiv Rani through LRs Page 5 of 8
9. The other plea raised by the appellant is that the impugned order is not maintainable as Order 22 Rule 4 CPC applies to the suit and not in respect of execution petition. Ld. Counsel for respondents submits that Order 22 Rule 12 CPC does not put any bar in moving an application for substitution of the legal heir of the JD in execution petition. He submits that if JD dies and his legal representatives inherit the property, decree can certainly be executed against them. In support of his submissions Ld. Counsel for the respondent has relied Sabeeda Heevi Vs Nazeema Thaha (supra). The relevant para 4 is reproduced as follows:-
4. Rule 12 of Order XXII of the Code of Civil Procedure provides that nothing in Rules 3, 4 and 8 shall apply to the proceedings in execution of a decree or order. Rule 3 provides for impleadment of the legal representatives of a deceased plaintiff. Rule 4 provides for impleading the legal representatives of a deceased defendant. If no application is filed within the time provided under Article 120 of the Limitation Act to implead the legal representatives of a deceased plaintiff or a deceased defendant, the suit will abate.
Article 121 of the Limitation Act provides for a further period of sixty days to file an application to set aside the abatement. If no application is filed within the time provided under Article 121 of the Limitation Act, there would occur delay and, in any application for impleadment filed thereafter, the delay has to be explained. By providing that Rules 3 and 4 of Order XXII of the Code of Civil Procedure would not apply to the execution proceedings, it only means that due to non-impleadment of the legal representatives, there would be no abatement to the execution proceedings. The legal representatives could be impleaded at any time and Execution Petition can be proceeded with. There is no bar to file a fresh Execution Petition also with the legal representatives on the party array, provided the Execution Petition is not barred by limitation. The Supreme Court in V. Uthirapathi v. Ashrab Ali and others 1998 (1) R.C.R. (Rent) 340: (AIR 1998 SC 1168) held thus:
Digitally signed by SANJAY SANJAY Date:
GARG GARG 2025.01.16 15:03:06 +0530 RCT-50/2018 Maan Singh Vs Shiv Rani through LRs Page 6 of 8 "15. It is clear, therefore, that if after the filing of an execution petition in time, the decree holder dies and his legal representatives do not come on record or the judgment debtor dies and his legal representatives are not brought on record, then there is no abatement of the execution petition. If there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the execution Court. If it remains pending and if no time limit is prescribed to bring the legal representatives on record in execution proceedings, it is open in case of death of the decree holder, for his legal representatives to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder's legal representatives. In case of death of the judgment debtor, the decree holder could file an application to bring the legal representatives of the judgment debtor on record, at any time. Of course, in case of death of judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file an application for the aforesaid purpose, the Court can dismiss the execution petition for default. But in any event the execution petition cannot be dismissed as abated. Alternatively, it is also open to the decree holder's legal representatives, to file a fresh execution petition in case of death of the decree holder; OR, in case of death of the judgment debtor, the decree holder can file a fresh execution petition impleading the legal representatives of the judgment debtor; such a fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition - the one which was filed in time by the decree holder initially. This is the position under the Code of Civil Procedure."
10. To strengthen his submissions that Order 22 Rule 4 CPC does not bar filing of the application for substitution of legal heirs of the JD, Ld. Counsel has relied upon Para 26 of the observations made by Uthirapathi Vs Ashrab Ali & ors. (supra), which is reproduced as follows:-
26. Here we have clarified further that if the execution petition was initially filed in time, (that is within the time limited for filing execution petition) it remains to be pending Digitally signed by SANJAY SANJAY GARG RCT-50/2018 Maan Singh Vs Shiv Rani through LRs Page 7 of 8 GARG Date:
2025.01.16 15:03:14 +0530 even if the legal representatives are not brought on record within 30 days. If the decree holder dies, the petition cannot be dismissed even for default, behind the back of his legal representatives. Again if the judgment debtor died and the decree holder does no bring the legal representative on record, the Court could fix reasonable time an d if the legal representatives of the judgment debtor are not brought on record within the time granted by Court, the execution petition could be dismissed for default.
11. In view of the legal proposition as discussed in above paras, I do not agree with the contention raised by Ld. Counsel for the appellant that impugned order is not maintainable as Order 22 Rule 4 CPC is not applicable in execution petition. Accordingly, the present appeal is dismissed.
12. Trial Court Record be sent back along with copy of this order.
13. The appeal file be consigned to Record Room.
SANJAY Digitally signed by SANJAY GARG GARG 15:03:20 +0530 Date: 2025.01.16 Announced in the open Court (SANJAY GARG-I) th on 16 January, 2025 Principal District & Sessions Judge Central District, Tis Hazari Courts, Delhi(D) RCT-50/2018 Maan Singh Vs Shiv Rani through LRs Page 8 of 8