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2014 Supreme(Bom) 1434
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
K.K.TATED, J.
Rajbahadur Yadav & Others - Applicant
Vs.
Rizvi Estates & Hotels Pvt.Ltd. - Respondents
CIVIL REVISION APPLICATION NO.112 OF 2009
Decided On : 21/07/2014
Mr.S.K.Mali alw Mr.Vishnu L. Chaudhari for the applicant
Mr.Apte, Sr.Counsel a.w Mr.Saroj Barucha and Ms.Aditi Phatak i/b
Mr.Ravi Thankanian for the respondent
Headnote:Civil Procedure Code, 1908 - Section 146, Order XXI, Rule 16 - T.P. Act, 1872, Section 109 - Execution of decree of eviction. - Petition for execution of decree of eviction by subsequent purchaser who was not original party, is maintainable. - Bare reading of section 109 of the Transfer of Property Act shows the right of purchaser for recovery of previous rent is subject to the terms and conditions of sale deed/conveyance. Section 146 of the Code of Civil Procedure shows that if the rights are purchased by third party after passing the decree, they have right to file execution application for the fruits of the said decree but same depends upon which type of decree was passed by the Court. If the decree is in the nature of personal right then that cannot be executable. But if it is in respect of immovable property, that can. Not only that even bare reading of Order XXI, Rule 16 of the Code of Civil Procedure shows that subsequent purchaser owner can execute the decree in respect of immovable property.
The reading of Explanation to said Rule 16 also shows that it is not necessary that the decree holder should assign the decree in favour of subsequent purchaser. The subsequent purchaser who purchases the said property in respect of which decree has been passed, acquired the right to execute the decree.
In the present proceeding, the respondents purchased the suit property on 14.7.1985 and they stepped into the shoes of the decree holder. That decree is passed on the ground of arrears of rent. The respondent gets right to recover the possession in view of subsequent development and Section 146 of the Code of Civil Procedure.
The objection raised by the petitioner that in view of section 109 of the Transfer of Property Act, respondents could not get right to execute decree is not sustainable in law. Section 109 of Transfer of Property Act is very clear that subject to the terms and condition of instrument/sale deed/conveyance, the transferee gets right to recover the rent. In the present proceeding in hand, it is crystal clear from Execution Application filed by respondent that, they asked the assistance of the Court for executing the decree for possession and not for recovery of arrears of rent or any other relief.
1. Heard the learned counsel for the parties.
2. The present Civil Revision Application is preferred by unsuccessful tenants challenging the order dt.27/28.11.2008 passed by Appellate Bench of Small Causes Court at Bandra in Revision Application No.60 of 2008 upholding the judgment and order of the Trial Court dated 3.12.2007 passed in Execution Application No.2258 of 2006 in R.A.E.Suit No.1854 of 1970 whereby the Execution Application was allowed and respondent Company was allowed to execute the decree of eviction passed in the suit which is finally confirmed in Writ Petition No.37 of 1992 and Special Leave Petition SC (D) 33479 of 2006.
3. The applicants herein are the heirs and legal representatives of the original deceased defendant no.2 and respondents in Execution Application. The respondent hereinabove is the applicant in the Execution Application. The respondent Company herein was not a party to the suit but was joined as respondent no.13 in Appeal No.103 of 1983 filed by the original defendants challenging the eviction decree passed in the present proceeding. Few facts of the matter are as under:
4. R.A.E.Suit No.1854 of 1970 was decreed by the trial court by judgment and order dt.23.11.1982. Appeal No.103 of 1983 preferred by org. defendants against the judgment and order of the trial court was dismissed on 7.10.1991. Writ Petition No.37 of 1992 filed by them was also dismissed on 5.10.2006. The said order was challenged by the applicants/tenant preferring SLP. The SLP was also dismissed. Thereafter the respondent filed Execution Application No.2258 of 2006 for possession of the suit premises i.e. Shop no.4, House No.96, ErlaKadri Park, VileParle (West), Mumbai 400 056.
The said Execution Application was opposed by the applicant tenants on several grounds including the ground that the respondents were not original parties in the present proceedings. They purchased the suit property by conveyance dt.14.7.1985 and therefore, the respondents have no right to file Execution Application in a decree which was passed on the ground of arrears of rent. That application was rejected by the Executing Court by order dt.3.12.2007. Hence, petitioners tenants preferred Revision Application No.60 of 2008. That was also dismissed by the Appellate Bench of Small Causes Court by oral judgment dt.27th / 28th November, 2008. Hence, the present Civil Revision Application.
5. The learned counsel for the petitioners submits that the impugned judgment passed by appellate Bench of Small Causes Court dated 27th / 28th November, 2008 in Revision Application No.60 of 2008 confirming the order passed by Small Causes Court dated 3.12.2007 in Execution Application No.2258 of 2006 is against justice, equity and good conscious and same is liable to be set aside. He submits that initially when original plaintiff filed Suit against org.defendant on the ground of arrears of rent and subletting, that time the respondents were not the parties. That suit was decreed by the trial court. Against that, the tenants preferred Appeal. That appeal was partly allowed and decree passed by trial court on the ground of arrears of rent confirmed. He submits that initially when the decree was passed the respondents were not the parties in the present proceeding. They purchased the suit property by conveyance deed dt.14.7.1985. Therefore, the respondents have no right to execute the decree of eviction which was passed on the ground of arrears of rent. He further submits that even bare reading of conveyance deed dt.14.7.1985 in favour of respondents show that they have no right to recover the rent from the petitioners org.tenants. He further submits that these facts are not considered by the courts below and erred in coming to the conclusion that the respondents stepped into the shoes of org.plaintiff. He further submits that in view of section 109 of Transfer of Property Act, subsequent purchasers have no right to recover the rent from the tenant unless and un
