Om Prakash Saini vs Ganga Devi Mathur

R.S. Chauhan, J.—The petitioner is aggrieved by the order dated 18.2.2014 and by the order dated 27.5.2014 passed by the Civil Judge (Jr. Div.) & Metropolitan Magistrate West, Jaipur Metropolitan. By the former order, the learned Magistrate has dismissed an application filed by the petitioner u/s 151 read with Section 141 CPC; by the latter order, the learned Magistrate has also dismissed the application filed by the petitioner u/s 151 read with Section 152 CPC.

The brief facts of the case are that the plaintiffs-respondents No. 1 to 7 filed a suit for recovery of rent and eviction against the defendant-petitioner. During pendency of the suit, the plaintiffs No. 1 to 7 had sold the property in dispute in favour of the respondents No. 8 and 9 by registered sale deed dated 10.2.2000. By order dated 20.9.2001, the learned trial court had impleaded the respondents No. 8 and 9 as plaintiffs in the suit. By judgment and decree dated 13.2.2009, the learned trial court has decreed the suit in favour of the plaintiffs-respondents No. 8 and 9. Against the judgment and decree dated 13.2.2009, the petitioner filed a first appeal, which was dismissed by the learned first appellate court. Thereafter the petitioner filed a second appeal before this court, which was also dismissed by this court. During the execution proceedings, the defendant-petitioner filed an application u/s 151 read with Section 141 CPC. By order dated 18.2.2014, the learned executing court dismissed the said application. Thereafter the petitioner filed another application u/s 151 read with Section 152 CPC, which was also dismissed by the learned executing court by its order dated 27.5.2014. Hence, this petition before this court challenging both the order dated 18.2.2014 and the order dated 27.5.2014.

Mr. M.C. Jain, the learned counsel for the petitioner, has raised the following contentions before this court with regard to the former order: firstly, admittedly the decree has been passed only in favour of the plaintiffs-respondents No. 8 and 9. However, the execution proceedings were initiated not only by the plaintiffs-respondents No. 8 and 9, but also by the plaintiffs-respondents No. 1 to 7. Therefore, the entire execution proceedings have been initiated by those persons in whose favour even the decree has not been passed.

Secondly, the petitioner has already paid rent upto 2019. The said rent was not only accepted by the plaintiffs-respondents No. 8 and 9, but was, in fact, withdrawn by them from his bank account. Therefore, the plaintiffs-respondents No. 8 and 9 do not have any right to seek eviction on the ground of default in payment of rental amount.

As far as the order dated 27.5.2014 is concerned, the learned counsel has contended that by order dated 18.2.2014, the learned Magistrate was not justified in directing that possession of the property in dispute should be taken with the help of the police. Therefore, the impugned order dated 27.5.2014 also deserves to be set aside.

On the other hand, Mr. Sudesh Bansal, the learned counsel for the plaintiff-respondent No. 8, has contended that the objections raised by the petitioner are hyper-technical in nature. Since the decree had been passed in favour of the plaintiffs-respondents No. 8 and 9, since they, too, have initiated the execution proceedings alongwith the plaintiffs-respondents No. 1 to 7, it would hardly make a difference if the execution proceedings had been initiated alongwith the plaintiffs-respondents No. 1 to 7.

Secondly, as far as the payment of rent is concerned, the learned Judge has given cogent reason as the rental amount was increased from Rs. 400/- to Rs. 800/- per month by the Additional Civil Judge (Sr. Div.) No. 6, Jaipur Metropolitan by order dated 26.2.2007. Therefore, no advance rental was paid till 2019.

Thirdly, as far as the order dated 27.5.2014 is concerned, the learned counsel for the respondent has submitted that despite the decree having being passed in favour of respondents No. 8 and 9, the petitioner is yet to handover the vacant possession of the property in dispute. Therefore, the learned Judge was certainly justified in directing that, if need be, help of the police be sought in getting the vacant possession of the property. Thus, the learned counsel has also supported the order dated 27.5.2014.

Heard the learned counsel for the parties and perused the impugned orders dated 18.2.2014 and 27.5.2014.

Merely because the execution proceedings have been initiated by the plaintiffs-respondents No. 1 to 7 alongwith the plaintiffs-respondents No. 8 and 9, it would not make much difference as the decree has to be executed in favour of the respondents No. 8 and 9 and they, too, are before the executing court. Therefore, it is merely a technical error or an irregularity that has been committed which would not vitiate the execution of the decree. During the course of the trial it was an admitted fact that the plaintiffs-respondents No. 1 to 7 have sold the property in question in favour of the plaintiffs-respondents No. 8 and 9. The respondents No. 8 and 9 were impleaded as a party only on the basis of said sale. Therefore, merely because the execution proceedings have been initiated by the plaintiffs-respondents No. 1 to 9 would not mean that the decree should not be executed by the court. Therefore, the contention raised by the learned counsel for the petitioner is untenable.

As far as the payment of rental amount is concerned, the learned Judge has clearly noticed the fact that initially the rent payable was Rs. 400/- which was increased by the Additional Civil Judge (Sr. Div.) No. 6, Jaipur Metropolitan by his order dated 26.2.2007 to Rs. 800/-. Even when the petitioner had challenged the said order dated 26.2.2007, the Additional District & Sessions Judge No. 1, Jaipur Metropolitan had dismissed the appeal and had maintained the order of increasing the rental amount from Rs. 400/- to Rs. 800/- per month. Even this court had granted a mesne profit of Rs. 1200/- per month. These facts mentioned by the plaintiffs-respondents No. 8 and 9 have not been controverted by the petitioner before the learned executing court. Therefore, the learned executing court was certainly justified in overruling the objections raised by the petitioner.

As far as the direction issued by the executing court that vacant possession of the property in dispute should be taken from the petitioner even with the help of the police is concerned, needless to say once a decree has been passed, the petitioner is duty bound to comply with the decree and to carry out the directions issued by the court of law. In case a party flouts the directions of the court and does not peacefully handover the vacant possession of the property, the court has no other option but to direct that help of the police should be taken and the decree should be executed both in letter and spirit. A litigant cannot be permitted to recklessly flout the directions of the court and still hope that the police would not knock at his gates. Both the majesty of the law and the majesty of the court has to be respected by the citizen. Therefore, if the learned executing court has directed that the decree should be implemented even with the help of the police, this court does not find any illegality or perversity in such direction of the learned executing court.

For the reasons stated above, this petition is devoid of any merit. It is, hereby, dismissed. The stay application also stands dismissed.