A landlord is not entitled to file a subsequent execution petition for eviction if the first execution petition was rejected because it was not filed within time and delay was not condoned.

( 1 ) THE revision petition is filed against the order passed by the learned principal Rent Controller, Hyderabad in E. A. No. 6 of 1992 in EPSR 11590 of 1992, allowing the application filed by the respondent-landlord to condone the delay of one year, ten months and eight days in filing the Execution Petition.

( 2 ) THE respondent in this revision petition who is the landlord of the premises obtained an order of eviction R. C. No. 40 of 1984 in the court of the principal Rent Controller, Hyderabad against the petitioner who is the tenant and that order of eviction was confirmed in appeal in R. A. No. 111 of 1987 dated 27-11-1989.

( 3 ) THE Landlord initially filed E. P. S. R. 8250 of 1990 with an application e. A. No. 41 of 1990 to condone the delay of 36 days in filing the petition for execution of the eviction order. The learned Rent Controller dismissed the said execution application on31-8-1991. Thereafter, the landlord filed E. A. 56 of 1991 to review the order passed in E. A. 41 of 1990. That application was also dismissed by the learned Rent Controller. Subsequently, he filed the present e. P. S. R. 11590 of 1992 and as there is a delay of one year, ten months and eight days in filing the said execution petition, he filed an application E. A. No. 6 of 1992 to condone the said delay. The learned Rent Controller allowed that application by this order dated 31st October, 1992. Hence the revision.

( 4 ) SUB-RULE (1) of Rule 23 of the Andhra Pradesh Buildings (Lease, Rent and eviction) Control Rules, 1961 (hereinafter called as the rules ) framed under the a. P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as the Act ) provides that every application for the execution of order passed under the Act shall be filed before the Rent Controller within six months from the date of the order. However, the proviso under the said sub- rule says that an application may be admitted after the specified period, if the applicant satisfied the controller that he has sufficient cause for not preferring the application within such period. Though the landlord filed the application e. A. No. 6 of 1992 to condone the delay under Section 5 of the Limitation Act, it can be treated as an application under the proviso to Rule 23 (1) of the Rules, because that also provides for condoning the delay in filing the applications filed for execution of orders passed under the Act. The reason given by the respondent landlord in his application for condoning the delay is that he was afflicted with paralysis and he was residing in a village in Medak district and, therefore he could not file the petition for execution in time. The main ground on which the learned Rent Controller has passed the order under revision appears to be that under Article 136 of the Limitation Act, decree-holder can execute a decree within twelve years and so though the rules under the Act prescribe a specific period of limitation of six months, the decree-holder has got a right to file a petition under the general law of limitation. He also referred to the explanation given by the landlord that he was afflicted with paralysis and held that even though the medical certificate is not proved, the reason given by the landlord can be accepted.

( 5 ) IN this revision petition, the learned counsel for the petitioner-tenant contended that since the earlier application E. A. No. 41 of 1990, to condone the delay of 36 days, was filed on the same ground i. e. that the landlord was suffering from paralysis and since that application was dismissed, the subsequent application based on the very same reason is barred by res judicata. He further contended that when the earlier execution petition is barred by limitation, the second execution petition is not maintainable, in view of the decision of this court in P. Ramaiah Setty V. S. Narasimha Charyulu.

( 6 ) THE learned counsel for the respondent, on the other hand, has contended that at the time of filing the first

Click Here to Read the rest of this document