Allahabad High Court
Manas Goswami vs Girdhari Lal Jaiswal And Another on 22 March, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
(Judgment reserved on 12.03.2013)
(Judgment delivered on 22.03.2013)
Court No. - 4
Case :- CIVIL REVISION DEFECTIVE No. - 7 of 2013
Petitioner :- Manas Goswami
Respondent :- Girdhari Lal Jaiswal And Another
Petitioner Counsel :- Ashish Kumar Srivatav
Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the applicant.
This revision has been filed with the delay of two years and four months. As no one appeared in spite of notice, hence delay condonation application was allowed on 12.02.2013 and on the same date, arguments on merit of the revision were heard.
It is said that real trouble of the plaintiff/ decree-holder starts after getting the decree. This case amply demonstrates the correctness of this observation. Landlords respondents instituted suit for eviction against the tenant applicant for his eviction from the tenanted shop in dispute in the form of S.C.C. Suit No.13 of 1998. The suit was decreed by J.S.C.C./ A.D.J., Varanasi. Revision was dismissed by this Court on 04.09.2009. Meanwhile, execution application had been filed by the landlords in the form of Execution Case No.1 of 2006. In the revision, this court had passed conditional stay order, however the condition was not complied with. The suit had been decreed by J.S.C.C./ A.D.J., Varanasi. In the execution application, tenant applicant filed objections under Section 47, C.P.C. in the form of Misc. Case No.3 of 2007 taking the pleas that decree passed was without jurisdiction, decree was passed in respect of a shop having two portions (do dari) and the property was not identifiable, and that the decree which was sought to be executed was shown to be dated 19.04.2004, however, the decree was passed on 19.04.2005. It was further argued that the decree of the trial court dated 19.04.2005 had been affirmed by the High Court in Civil Revision No.222 of 2005, which was dismissed on 04.09.2009, hence execution ought to have been sought of the decree of the High Court.
Executing Court/ J.S.C.C./ A.D.J., Court No.11, Varanasi rejected the objections on 09.06.2010. The said order has been challenged through this revision.
Regarding error of the date in the decree, the court below held that it was merely typing error. It directed the decree holder to get the date of the decree corrected. The other objections were extremely trivial, ultra technical and meaningless, hence they were rightly rejected by the court below. It is merely difference of description whether a portion is described as two shops/ rooms or one shop/ room having two portions (do dari) . The pleas sought to be raised had already been raised in the impugned judgment and decided against the applicant tenant. Those questions could not be re-agitated in execution vide "P.V. Jose v. Kanickammal" AIR 2000 SC 2688. In "Dhurandhar Prasad Singh v. Jai Prakash University" AIR 2001 SC 2552, it has been held that powers under Section 47, C.P.C. are very narrow and it only provides a microscopic hole.
Accordingly, I do not find least error in the impugned order. It is quite clear that petitioner is abusing process of court. Revision is therefore dismissed and it is further directed that with effect from the date of the decree, enhanced damages as directed by the High Court in the earlier revision to be paid by the tenant shall be recovered from the tenant in execution in question itself. It is further directed that with effect from the date of dismissal of the earlier revision, applicant shall also be liable to pay Rs.5000/- per month as damages for use and occupation which should also be recovered in the execution in question (Execution Case No.1 of 2006).
Office is directed to send a copy of this judgment to the court below i.e. A.D.J., Court No.11, Varanasi to be placed in Execution Case No.1 of 2006 arising out of S.C.C. Suit No.13 of 1998.
Order Date :- 22.3.2013
NLY
