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C.M. No. 25697/2017 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

Ex.F.A. No.18/2017 and C.M. No. 25696/2017 (stay)

2. This Execution First Appeal impugns the judgment of the Executing Court dated 1.4.2017. By the impugned judgment, the executing court has accepted the objections filed by the respondent no.2/partnership firm M/s Awesome and its partner Sh. Vijay Adlakha. It has been held inter alia by the impugned judgment that the decree of the civil suit dated 16.8.2010 obtained by the appellant/plaintiff/decree holder would not bind the objector Sh. Vijay Adlakha since the objector was not a party to the suit. It may be noted that the suit was filed against Sh. Panna Lal Rathore as a sole proprietary concern of Salem Handloom Textiles and as per the objections filed the tenancy was actually of the partnership firm M/s Awesome of which Sh. Panna Lal Rathore and the objector Sh. Vijay Adlakha were the partners and hence the co-tenants. I may note that the objections filed in the present case though are on behalf of M/s Awesome and Sh. Vijay Adlakha, really it is Sh. Vijay Adlakha who is the objector inasmuch as the firm M/s Awesome is pursuing the objections only and only through Sh. Vijay Adlakha and not the stated second partner Sh. Panna Lal Rathore.

5. In response to the arguments urged on behalf of the appellant, learned counsel for the respondent no.2/objectors has argued the following points:-

(i) In this appeal only one objector has been made a party namely M/s Awesome/respondent no.2 through Sh. Vijay Adlakha, although there were two objectors whose objections were decided by the impugned judgment, namely M/s Awesome and Sh. Vijay Adlakha and hence it is argued that the appeal is therefore incompetent in the absence of Sh. Vijay Adlakha having been made a respondent in this appeal.
(ii) Another argument for the appeal for being held to be incompetent is that the affidavit which has been sworn by the appellant is said to be dated 1.6.2017 but the appeal was originally filed on 20.5.2017 i.e it is argued that there cannot be an affidavit which is sworn of a later date than the filing of the appeal on 20.5.2017. Hence the appeal is argued is liable to be dismissed.

(iii) It is argued that the court below has rightly passed the impugned judgment allowing the objections and giving time to the objectors to file their written statement, inasmuch as, no decree could have been passed against the objectors unless they were made parties to the suit in which the decree was passed. Reliance is placed upon the order of this Court dated 29.9.2014 passed in EFA No. 14/2014 whereby this Court had directed filing of objections by M/s Awesome and Sh. Vijay Adlakha. It is argued that in accordance with such directions the objectors had filed objections, and therefore, objections have been rightly allowed.

13. In sum and substance it is seen that the entitlement of an objector for not being bound by the judgment and decree of the civil court is by proving an independent right, title and interest in the suit premises. Independent right, title and interest means that there is an existing right, title and interest in the suit premises. No doubt the objector Sh.Vijay Adlakha, who was objecting/suing for himself and on behalf of M/s Awesome, is one other partner and a co-tenant in the tenanted premises, but the tenanted premises no longer continued as a tenanted premises i.e the tenancy does not continue because the tenanted premises are outside the protection of the Delhi Rent Control Act, and there was no registered lease deed entitling the tenant to stay in the suit premises for an unexpired period which continues. Once therefore the objector Sh. Vijay Adlakha has no legal right, title and interest as a tenant in the suit premises, obviously the objections filed by the objectors could not have succeeded.