The learned executing court was under obligation to frame issues before dismissing the objections preferred by the tenants.

Tarlok Singh Chauhan, J.

1. By the medium of this petition under article 227 of the Constitution of India, the following reliefs have been prayed:

“(i) To call for the record of the case pertaining to execution petition No.55-1 of 2015/11 pending before the Ld-Rent Controller Court No-IV Shimla, HP titled as Durga Singh vs. Sukhdev and after examining the legality and propriety of the impugned order annexure P-5 to quash and set aside the same.

(b) To directing the executing court to decide the objections annexure P-4 in accordance with law after framing the issues and giving opportunity of evidence.”

2. The necessary facts leading to the filing of the instant petition are that respondent/ decree holder had filed an application for eviction against the proforma respondent Sukhdev Sharma with respect to the premises known as Set No.1, Upper Floor House, Cart Road, Ram Singh House, Shimla. The grounds on which the eviction was sought;

(i) arrears of rent and

(ii) sub letting the premises in favour of petitioners.

3. The proforma respondent did not choose to contest the proceedings and was thus proceeded ex-parte and finally orders of eviction came to be passed on 8.12.1986.

4. On coming to know about the orders of eviction, petitioners filed a suit for declaration and injunction by arraying the proforma respondent as also the respondent/decree holder as party on the ground that they were in fact tenants in the suit premises and eviction order passed to their detriment and in their absence was void and, therefore, landlord be permanently restrained from interfering in their possession.

5. The learned trial court dismissed the suit vide judgment and decree dated 9.7.1990, however, the appeal preferred before learned first appellate court was partly accepted and it was held that the order of learned Rent Controller was void and at the same time decree holder/respondent was restrained from evicting the petitioners. The judgment passed by the First appellate court was assailed by way of RSA No. 127 of 1998 and this court vide its judgment and decree dated 27.9.2010 accepted the appeal and set aside the findings of the learned First Appellate court and even the cross objections filed by the petitioners were ordered to be dismissed. Consequently the suit filed by the petitioners was ordered to be dismissed.

6. In the execution petition filed by the decree holder for executing the eviction order, the petitioners filed objections under Section 47 read with order 21 Rule 97 and 101 of CPC which came to be dismissed on 28.5.2016, yet undeterred the petitioners have approached this court assailing the aforesaid order, primarily on the ground that the objection preferred by them could not have been ordered to be dismissed without framing issues.

7. At this stage, I may observe that when the case came up for consideration on 16.6.2016, it was represented by the learned counsel for the decree holder that the instant petition was more in the nature of a mercy petition and the petitioners be granted some time to remain in occupation of the premises as they were in the midst of construction of their own house and would shortly shift to the premises under construction. This fact is also pleaded in clause (d) of the ground raised in the petition which reads thus:

“(d) That another factor which the petitioners wanted to place before Ld. Executing court was that the petitioner was in the midst of getting his own construction made and had got his plans sanctioned through the competent local body/authorities, copy of the sanction of residential plan of the petitioners are annexed herewith as Annexure P-6, to the petition. After grant of sanction the petitioner have made sufficient construction and have raised the columns as also the lintel and the finishing work has to be completed which would be completed within a span of at least one year. The composite photographs are annexed herewith as Annexure P-7, to the petition. The Ld. Executing court could hav