Ajay Kumar Jain vs Hujjaifa Alias Sarwar Abbas
2021 Latest Caselaw 8306 MP

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           HIGH COURT OF MADHYA PRADESH
                                   M.P. 3218/2021

     (Ajay Kumar Jain & Anr. Vs. Hujefa alias Sarver Abbash & Anr.)
Gwalior dated 06.12.2021
       Shri Vikas Singhal, learned counsel for the
petitioners.
       Shri N.K. Gupta, learned senior counsel with Shri
R.S. Gupta, Advocate for the respondents.

1. This petition has been filed against the order dated 15/09/2021 passed in case No. 45/2016 by executing court, whereby, objection application filed by the petitioners/judgment debtor under section 47 r/w section 151 of CPC has been dismissed and warrant of possession has been issued.

2. Heard learned counsel for both the sides and perused the material available on record.

3. Learned counsel for the petitioners/judgment debtor has contended that the decree of eviction was passed in favour of the decree holder only with regard to shop and room. No relief was sought with regard to the portion admeasuring 6.5 x11.5 feet situated in front of the rented portion. Accordingly, the decree does not pertain to this portion which is in the ownership of the Municipal Council, Guna. Still learned executing court has gone beyond the decree and issued warrant of possession for this portion also. Thus, the impugned order is per-se illegal and without jurisdiction which deserves to be quashed and set aside.

4. Mr. N.K. Gupta, learned senior counsel appearing

HIGH COURT OF MADHYA PRADESH M.P. 3218/2021

on behalf of the respondents/landlord submits that the above portion is certainly in the ownership of the Municipal Council, but this portion finds place in the rent note. The tenants were permitted to use this portion alongwith rented premises. Once tenancy came to an end, the tenants have no right to retain this portion particularly in view of the findings of the first appellate court, against which, second appeal of the tenants has been dismissed.

5. It is well settled legal position that the executing court has to execute decree in letter and spirit. It has no authority to go behind the decree or to interpret the decree in its own manner against the mandate of the court which passed the decree.

6. After considering the rival contentions, it is found that the decree of the eviction against the tenants/petitioners has attained finality. The portion in question certainly belongs to the Municipal Council, Guna, but use of the same was permitted to the landlord/respondents herein. Accordingly, the petitioners/tenants were also allowed by the respondents /landlord to use this portion which is situated in front of rented premises. It is not so that this portion was let out by the Municipal Council to the petitioners/tenants. Otherwise also they have got no individual right over it. The findings of the trial court in this regard has been set aside by the appellate court. The second appeal of the

HIGH COURT OF MADHYA PRADESH M.P. 3218/2021

petitioners/tenants has also been dismissed. Thus, the petitioners/tenants has no right to remain in possession of the portion in question without which rented premises cannot be used and without this portion the decree is bound to be frustrated.

7. In view of the above and for the reasons stated, the learned executing court has not committed any illegality in dismissing the objection of the petitioners/judgment debtor under section 47 r/w section 151 of CPC.

8. Thus, this Court does not find any reason to interfere in the impugned order. Resultantly, the instant petition stands dismissed.

(Satish Kumar Sharma) Judge

Durgekar*

SANJAY NAMDEORAO DURGEKAR 2021.12.07 17:22:57 +05'30'