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High Court Of Delhi
KULDIP SINGH - Appellant
Versus
CHARAN SINGH - Respondent
Civil 886 of 1983
Decided On : 03/28/1985
EXECUTION OF DECREE - WARRANT OF POSSESSION - ISSUANCE - DECREE FOR MANDATORY INJUNCTION - EXECUTION - MODE OF - DELHI RENT CONTROL ACT, 1958 - S. 14 - APPLICABILITY - THIRD PARTY OBJECTION - MAINTAINABILITY.
Fact of the Case:
Petitioner, a tenant, objected to the issuance of warrants of actual possession of premises in execution proceedings, claiming lawful tenancy and entitlement to possession under the Delhi Rent Control Act. The suit for mandatory injunction and perpetual injunction was decreed ex parte, and the appellate court upheld the decree. The petitioner challenged the issuance of warrants of possession, arguing that it was illegal and collusive.
Finding of the Court:
The court held that the issuance of warrants of actual possession in execution of a decree for mandatory injunction was illegal and not justified by law. The decree-holder had an option to file a suit for possession but chose not to do so, and the petitioner, as a lawful tenant, should not be subjected to loss of possession and legal rights without a remedy.
Issues: 1. Whether the issuance of warrants of actual possession in execution of a decree for mandatory injunction was legal and justified. 2. Whether the petitioner, as a third party, had locus standi to raise objections under Order 21 Rule 97 and Order 21 Rule 101 of the Civil Procedure Code. 3. Whether the petitioner's right to lawful tenancy under the Delhi Rent Control Act was affected by the decree and warrants of possession.
Ratio Decidendi: 1. The court relied on the Full Bench decision in Sarup Singh v. Daryodhan Singh, which held that a decree for injunction is normally executed by detention of the judgment-debtor or attachment of property, and not by issuance of warrants of possession. 2. The court held that the petitioner, as a third party, had locus standi to raise objections under Order 21 Rule 97 and Order 21 Rule 101 of the Civil Procedure Code, as the immediate consequences of the illegal decree of possession would be instant dispossession and frustration of the petitioner's legal rights. 3. The court held that the petitioner's right to lawful tenancy under the Delhi Rent Control Act was affected by the decree and warrants of possession, as the landlord had stated in the written statement that the petitioner was inducted as a tenant and was paying rent, but later allowed the suit and appeal to proceed ex parte.
Final Decision: The court set aside the order of the Execution Court issuing warrants of actual possession of the suit property and held that the petitioner should not be disturbed in his possession of the premises on the basis of the said warrants of possession.
( 2 ) PLAINTIFF, Charan Singh had filed the said suit against the defendant, Gurdwara Committee and the General Secretaries of the said Committee. The suit was for mandatory injunction and perpetual injunction for restraining the letting out or giving the said shop to anybody else and for a mandatory direction to consider the plaintiffs application for letting out the shop to him. The said suit was filed on 25-8-72. The plaintiff alleged that by virtue of an agreement dt. 11-4-55 between himself and defendant No. 1 he was entitled to the said premises. It was alleged by the plaintiff that he was in possession of Quarter No. 11 in the said building and it was agreed that he would surrender the possession of the said Quarter and Shift to Quarter No. 9. It was further alleged that under the said agreement he was also promisee that he would be entitled to get a shop in the said building and in the line of shops occupied by Dasonda Singh to Ram Lal Mochi. It was then alleged that no time limit was fixed for the allotment of a plot. The shop 202/1, which was occupied by Ram Lal Mochi, had fallen vacant. The plaintiff, therefore, claimed that the said shop be let out to him and not to anybody else. The defendants in their written statement claimed that the alleged agreement dt. 11-4-55 had exhausted itself and was not operative. The reason was that instead of Quarter No. 9 the plaintiff later on preferred Quarter No. 1/436 which was much bigger in area and abutted on a 16 wide street as against a 5 wide street abutting Quarter No. 9. Two premises had fallen vacant in the said shop line from time to time but the plaintiff never showed any desire nor made any request for the allotment of said shops. The suit was filed on 25-8-72 but before that on 6-8-72, the said premises were let out to the objector and some others. But after filing of the said written statement the defendants did not show any interest in the suit and allowed the matter to be proceeded ex parte. The suit was dismissed by the trial court on 19-7-78. The plaintiff preferred an appeal. The defendants did not contest the appeal and allowed it to proceed ex parte. The petitioner herein claims that after letting out the shop in question to him the defendant committee in collusion with the plaintiff allowed the suit to be decreed by not contesting the same. The appellate court decreed the suit.
( 3 ) TWO contentions are raised by the petitioner in this revision. The first contention is that the collusive decree between the plaintiff and the defendant cannot put to an end a legal right in favour of the petitioner/third party. It is also contended that the trial court was wrong in ordering issuing warrants of actual possession against the petitioner. The plaintiff was only entitled to symbolic possession in law and not the actual possession. The counsel for petitioner has relied upon Sarup Singh v. Daryodhan Singh AIR 1972 Delhi 142 (FB) in support of the proposition that no warrant of possession can be issued in execution of decree for mandatory injunction. The counsel further argued that his right to lawful tenancy is governed by Delhi Rent Control Act and the tenant cannot be dispossessed except by decree of eviction passed under the Delhi Rent Control Act. He has relied upon the decision of this Court reported in Sunder Dass v. Mulkh Raj, AIR 1981 Delhi 85. The Counsel then submitted that neither of the decisions of this Court were considered by the first appellate court although they were cited before the said
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