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1993 Supreme(Ori) 139
IN THE HIGH COURT OF ORISSA
A. Pasayat, J.
DR. MADESHI JOGESWAR DORA - APPELLANT
Versus
KAILASH NATH MUNDRA AND OTHERS - RESPONDENT
Civil Revision No. 767 of 1991
Decided On : 21-12-1993
P.K. Misra, N.C. Pati, B.K Swain, D.K. Nayak, B. Sahoo, A.K. Sahoo and A.K. Misra, for the Appellant; L. Mohapatra, M.R. Mohanty (2), S.C. Mohanty and B.K. Nayak, for the Respondent
A sub-tenant or sub-lessee is not included in the definition of 'judgment-debtor' under Section 2(10) CPC unless he is impleaded and a decree has been passed against him or an order capable of execution has been made.
Headnote:
ORDER 21 RULE 2 CPC - ADJUSTMENT OF DECREE - SUB-RULE (2) - JUDGMENT DEBTOR - SUB-TENANT OR SUB-LESSEE NOT INCLUDED UNLESS IMPLEADED AND DECREE PASSED AGAINST HIM.
Fact of the Case:
Petitioner filed an application under Sub-rule (2) of Rule 2 of Order 21 of the Code of Civil Procedure, 1908 (CPC) claiming that a compromise was reached between the parties during the execution of a writ of possession, and that the decree-holder had relinquished their claim over the suit property. The decree-holder disputed the compromise and objected to the petitioner's locus standi to move the Court for adjustment.
Finding of the Court:
The court held that the petitioner, being a sub-tenant, was not a judgment-debtor within the meaning of Order 21, Rule 2, CPC, and therefore had no locus standi to move the Court for adjustment. The court also found that the decree-holder had not certified the adjustment, and that the compromise claimed by the petitioner was disputed by the decree-holder.
Issues: Whether a sub-tenant or sub-lessee can be considered a judgment-debtor for the purpose of Order 21, Rule 2, CPC.
Ratio Decidendi: The court held that a sub-tenant or sub-lessee is not included in the definition of 'judgment-debtor' under Section 2(10) CPC unless he is impleaded and a decree has been passed against him or an order capable of execution has been made. The court also held that Order 21, Rule 2, CPC contemplates adjustment of the decree by consent, express or implied, and that the decree-holder plays a vital role in certifying such adjustment.
Final Decision: The court dismissed the petitioner's application for revision, holding that the petitioner had failed to bring his case within the ambit of Order 21, Rule 2, CPC.
JUDGMENT :
A. Pasayat, J. - Petitioner's application for action in terms of Sub-rule (2) of Rule 2 of Order 21 of the Code of Civil Procedure, 1908 (in short, 'CPC') having been held to be not maintainable by the leaned Munsif, Sambatpur, the application for revision under consideration has been filed. The dispute in which the application was filed has a fairly chequered career including several jcurneys to this Court and the Apex Court.
2. The fact situation, as highlighted by the laarned Munsit. which is almost undisputed is as follows :
The subject-matter of the dispute is a pucca double storied building bearing municipal holding No. 223 (now) (old 713- A/1) In Ward No. 7 of Jharsuguda Municipality standing on H. S plot No. 1191 measuring AO. 09 decimals appertaining to H. S. Khata No. 164 of Jharsuguda, and an area of AO. 01? decimals appertaining to Nazal plot No 338 of Jharsuquda town which originally belonged to one Samir Kumar Chowdhury, and was subsequently transferred to the present opp. party Nos. 1 to 5 by a registered sale-deed dated 2501- 1978. One Dr. C. V. Lankey was staying in the said house as a monthly tenant under the original owner Samir Kumar Chowdhury before transfer of the house to the opp. party Nos. 1 to 5. After death of Dr. Lankey, his widow Smt. Basanti Dei Lankey continued to stay there. The original landlord Samir Kumar filed H. R. C. Case No. 2 of 1977 for eviction of Smt. Lankey on the ground of non-payment of rent within stipulated time, requirement for personal use and occupation, and for unauthorised sub-letting to the present petitioner. The proceeding was instituted under Orissa House Rent Control Act, 1967, (in short, 'Rent Act'). During pendency of the HRC Case, opp. party Nos. 1 to 5 purchased the house, and thereafter Samir Kumar did not press the case. On 25-1-1978 opp. party Nos. 1 to 5 filed another HRC case bearing No. 41 of 1978, for eviction of Smt. Lankey. In the said proceeding Smt. Lankey filed her written statement. In the year 1980 she was set ex parte. Her application under Order 9, Rule 13, CPC (Misc. Case No. 3 of 1980) was dismissed tor default. Another application was filed to restore the said misc. case which was dismissed for default and the same was also dismissed. Another misc. case was filed to restore the earlier misc. case which was allowed, but after due contest, Misc. Case No. 3 of 1980 was dismissed. H. R. C. Appeal No. 15 of 1981 filed by Smt. Lankey before the Learned Chief Judicial Magistrate, Sambalpur did not bring her any relief. This Court was moved in OJC No. 1752 of 1981, which was also dismissed. In between on 15-12-1979, the learned House Rent Controller had passed an order in HRC Case No. 41 of 1978 directing Smt. Lankey to deliver vacant possession of the house to the present opp. party Nos. 1 to 5 within one month from the data of the order. Thereafter execution case No. 11 of 1980 was filed by them on account of Smt. Lankey's failure to deliver possession. In the said case she appeared at the stage when writ of delivery of possession was issued, but had not Wed any objection in terms of Order 21, Rule 23, CPC. During pendency of the execution ease, present petitioner filed Title Suit No. 74 of 1981 before the learned Subordinate Judge, Sarnbalpur. in the said suit an application under Order 39, Rule 1. CPC read with Section 151, CPC was filed with a prayer to stay further proceedings in Execution Case No. 11 of 1980. The present opp. party Nos. 1 to 5 appeared and resisted the prayer.The said application was dismissed. Against the said Order of dismissal. Misc. Appeal No. 375 of 1981 was preferred before this Court, which was subsequently withdrawn on 13-9-1382. The present petitioner filed HRC Appeal No. 24 of 1981 before the Chief Judicial Magistrate, Sambalpur, against the original order of eviction passed on 15-12-1978 in HRC Case No. 41 of 1978 which was dismissed by order dated 3-12-1982. Thereafter petitioner filed OJC No. 2327 of 1982 befor
