Musheer Alam vs Ramesh And 10 Others
2015 Latest Caselaw 2318 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.
 
Court No. - 58
 
Case :- MATTERS UNDER ARTICLE 227 No. - 5224 of 2015
 
Petitioner :- Musheer Alam
 
Respondent :- Ramesh And 10 Others
 
Counsel for Petitioner :- R.P. Srivastava,Rakesh Pande
 
Counsel for Respondent :- Jokhan Prasad
 

 
Hon'ble Manoj Kumar Gupta,J.

1. The petitioner, who is a judgment debtor in Original Suit No.21 of 1985, preferred objections under Section 47 C.P.C. against execution of the decree, inter alia, on the ground that the decree passed by the trial court is declaratory in nature and is incapable of being executed.

2. The objection filed by the petitioner was rejected by the executing court by an order dated 8.4.2015 and the revision filed against the said order has also been dismissed by order dated 31.8.2015. These orders are under challenge in the instant petition.

3. The only submission made by learned counsel for the petitioner is that the decree passed in the suit is a declaratory decree, thus incapable of being executed by delivering actual physical possession to the plaintiffs as sought for in the execution proceedings.

4. The suit in question was instituted by the plaintiff-respondents for grant of a decree of possession in respect of House No.719, Ward No.6, Mohalla Malitola, Gandhi Nagar, Basti. Arrears of rent to the extent of Rs.1800 for the period September, 1983 to February, 1984 and mesne profits and damages were also claimed. According to the plaint assertions, the petitioner, who is defendant therein, was tenant of the demised premises on a rent of Rs.300 per month, on behalf of the plaintiff-respondents. The provisions of U.P. Act No.13 of 1972 are not applicable, as the demised premises is a construction of the year 1980 and 10 years have not passed since the date of its construction. The tenancy of the petitioner was allegedly terminated by a notice dated 24.1.1984 but when he failed to vacate within a period of one month, the suit in question was instituted.

5. The trial court framed several issues and issue no.6 is in regard to the relief to be granted to the plaintiff. While deciding the said issue, the trial court held that since provisions of U.P. Act No.13 of 1972 are not applicable and the tenancy of the petitioner has been lawfully terminated and consequently, the plaintiff is entitled to possession and decree for arrears of rent and damages. The operative part of the decree passed by the trial court is to the following effect:-

oknh dk okn lO;; bl izdkj fMdzh fd;k tkrk gS fd og fookfnr edku 719 tks okn i= ds uD'kk utjh esa lhMh bZ,Q ls fn[kk;h x;h gS ij DCtk n[ky izkIr djus dk vf/kdkjh gS vkSj og izfroknh ls flrEcj lu~ 1983 ls Qjojh lu~ 1984 rd dk fdjk;k eq0 [email protected]& #i;k izkIr djus dk vf/kdkjh gS rFkk oknh izfroknh ls ekpZ 1984 ls n[ky ;kch rd dsoy [email protected]& izfrekg dh nj ls gh fdjk;k ikus dk vf/kdkjh gSA

6. It seems that the decree passed by the trial court was subjected to challenge in appeal. The appellate court framed several points for determination and point no.8 framed by it was as regards the relief to which the plaintiff was entitled to. While deciding the said issue, the appellate court again held that the plaintiff is entitled to possession of the demised premises and consequently, dismissed the appeal.

7. The executing court as well as the revisional court, while interpreting the decree passed in the suit, have held that the decree is, in pith and substance, a decree for possession and the plaintiff is entitled to execute the decree by evicting the petitioner.

8. Learned counsel for the petitioner in support of his contention has placed reliance on a judgment of this Court in the case of Roman Catholic Diocese of Agra Ltd. Vs. Rajendra Singh and others1. In that case, the Rent Control and Eviction Officer (for short RCEO), in proceedings held under Section 29-A (5) of U.P. Act No.13 of 1972, had determined the enhanced rent payable for the demised land by the petitioner-tenant therein. On the basis of the determination so made, the RCEO issued a recovery certificate for realisation of enhanced rent. It was subjected to challenge in writ petition and therein, the Court held that the proceedings under Section 29-A (5), are declaratory in nature and on the basis of an order passed therein, the RCEO was not authorised to issue a recovery certificate.

9. Concededly, the suit instituted by the plaintiff-respondent was for grant of a decree of possession against the petitioner-tenant, as his tenancy was duly terminated and for recovery of arrears of rent and mesne profits. The trial court as well as the appellate court, while deciding the suit, have categorically held that the tenancy of the petitioner was lawfully terminated and he having failed to vacate within the statutory period, is liable to be evicted. Thus, from a perusal of the findings rendered in the body of the judgment of the trial court, there is no iota of doubt that the decree which the trial court intended to pass, was a decree of possession, as prayed for in the plaint.

10. Under Section 2 (2) 'decree' means the formal expression of adjudication which, so far as regards the court expressing it, conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit. Thus, in the opinion of the Court, in case there is any confusion in the operative part of the judgment, the same is to be interpreted by referring to the adjudication made in the judgment. A perusal of the judgment, as noted above, clearly reveals that the plaintiff was held entitled to eject the tenant, as the tenancy of the petitioner was lawfully terminated. In such view of the matter, this Court does not find any illegality in the interpretation regarding the scope and extent of the decree made by the executing court and the revisional court.

11. The decision cited, would not apply to the facts of the instant case, which as noted above, are clearly distinguishable. The specious argument made by the learned counsel for the petitioner is, thus, not acceptable. The petition lacks merit and is dismissed.

12. In the end, learned counsel for the petitioner prayed for reasonable time being granted to vacate the demised premises to which Sri Jokhan Prasad, learned counsel appearing on behalf of the decree holder has no objection.

13. Accordingly, with consent of parties, it is further provided that the petitioner shall be permitted to remain in possession of the demised premises until 31.12.2015, provided the petitioner furnishes an undertaking in form of an affidavit before the executing court, within three weeks from today, that he will hand over peaceful vacant possession of the demised premises to the decree holder, without any let or hindrance on or before 31.12.2015. Within the aforesaid period, the petitioner shall also deposit the entire arrears of rent and damages, as decreed by the trial court. In case of default in compliance of any of these conditions, the decree shall become executable forthwith.

(Manoj Kumar Gupta, J.)

Order Date :- 15.9.2015

SL