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IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Garg
Civil Revision No.4872 of 2013 (O&M)
Sukhdev Rai Kaushal
v.
Gokal Chand Mittal
{Decided on 26/08/2013}
(B) Civil Procedure Code, 1908, Ss.37 & 38--Execution of decree--Court of first instance--Provisions of Ss.37 & 38--Interpretation of--Held, provisions of S.37 CPC defining words “the Court which passed a decree” are inclusive in nature and do not restrict right of execution by a Court under whose jurisdiction property is situated and who alone can execute decree--Explanation to S.37 CPC contemplates two courts, i.e. Court which passed decree and Court which has territorial jurisdiction over subject matter of suit--Thus, execution petition can be filed in either of these two Courts--In fact, if jurisdiction of any Court has been transferred to another Court, then both Courts will have concurrent jurisdiction to execute decree and will be Court of first instance for purposes of S.38 CPC in view of explanation added to S.37 CPC. (Para 23)
(C) East Punjab Urban Rent Restriction Act, 1949 S.13--Eviction--Execution of decree--Contention on behalf of petitioner that decree in question has become inexecutable against petitioner/tenant as he has become a co-sharer suit property to extent of 19/24 shares, and therefore, right to execute decree to that extent has become extinct on ground that tenancy rights of petitioner have been merged into his ownership rights--Held, tenancy rights would not merge with ownership rights and owner who inducted tenants is entitled to evict them--In view of this, contention wholly erroneous and liable to be rejected--Civil Procedure Code, 1908, O.21 R.36. (Paras 29 & 30)
(D) East Punjab Urban Rent Restriction Act, 1949 S.13--Eviction--Execution of decree--Objection thereto--Rejection of--Validity--Contention that objection petition has been rejected summarily and without framing issues and granting opportunity to lead evidence--Held, there is no dispute with regard to the facts of case--There is nothing on record to observe that decree of eviction under question is void and was not passed by Court of competent jurisdiction--In view of this, contention liable to be rejected--Civil Procedure Code, 1908 O.21 R.36. (Para 33)
Mr. Rakesh Kumar Garg, J.:- As per the pleaded facts, one Shamir Chand was the owner of SCF No.21, Sector 18-C, Chandigarh (demised premises). He had inducted the petitioner as a tenant in the demised premises in the year 1962. The said Shamir Chand executed a Will dated 13.04.1963 in favour of five sons (including the petitioner) and the widow of his deceased son namely Qabul Chand. The eviction petition was filed on 18.12.1980 against the petitioner on behalf of the six legatees. Initially the above said eviction petition ‘was filed in the Court of Rent Controller, Chandigarh; however, the petitioner had moved Hon’ble the Supreme Court for transfer of this eviction petition from Chandigarh to some other place and Hon’ble the Supreme Court had transferred the eviction petition from Chandigarh to Delhi. Ultimately, the eviction petition was decided by the Rent Controller, Delhi on 03.03.1986 ordering eviction of the petitioner from the demised premises. The petitioner filed an appeal against the aforesaid order of the Rent Controller, Delhi before the Rent Controller Tribunal, Delhi, which was also dismissed on 18.05.1989. Thereafter, the petitioner filed a revision petition against the aforesaid two orders of the Authorities under the Rent Act in the High Court of Delhi, however, the said revision petition was subsequently transferred by the Hon’ble Supreme Court from Delhi to Chandigarh. The Civil Revision No.1583 of 1992 was dismissed by this Court on 30.05.2009.
2. At this stage, it may be noticed that the petitioner had filed Civil Misc. Nos.21333-34-CII of 2007 for bringing to the notice of this Court that he had purchased about 70 percent share of the demised premises from some of the co-sharers and the said fact be taken note of. Vide order dated 23.01.2008, the said applications were ordered to be heard along with the main case.
3. According to the petitioner, while dismissing the Civil Revision finally on 30.05.2009, this Court did not make reference to the aforesaid Civil Misc. applications despite the order dated 23.01.2008. The petitioner filed SLP against the aforesaid judgment dated 30.05.2009 of this Court passed in Civil Revision No.1583 of 1992, which was also dismissed vide order dated 28.02.2011. It may further be noticed that while dismissing the SLP vide order dated 28.02.2011, Hon’ble the Apex Court had specifically rejected the prayer of the petitioner for deletion of the names of respondents from the eviction petition as petitioners (from whom the petitioner alleged to have purchased their share of property).
4. According to the further facts pleaded by the petitioner, all the co-owners of the demised premises, except the respondent herein, had sold their shares in this property in favour of the petitioner; and thus, he has become owner of 19/24 shares in this property and the respondent is owner only to the extent of 5/24 shares in the property in dispute.
5. The respondent filed a petition in the Court at Chandigarh for execution of the decree of eviction dated 03.03.1986 passed by the Rent Controller, Delhi. The petitioner filed objections against the aforesaid execution petition, to which the respondent filed reply and the petitioner further filed a rejoinder to the said reply of the respondent- decree holder.
6. The objection petition filed by the petitioner has been dismissed by the Executing Court at Chandigarh vide impugned order dated 05.08.2013, which is under challenge in the instant revision petition.
7. Though the petitioner, in his grounds of revision, has raised various arguments, however, he has raised the following arguments in support of his case and to challenge the impugned order of the Executing Court:
1. In view of the provisions of Section 38 of CPC, the Executing Court has no jurisdiction to entertain the execution petition directly, as in this case decree dated 03.03.1986 was passed by the Rent Controller, Delhi.
2. The petitioner has become co-owner of the property in
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