IMPORTANT POINT
Execution proceedings are independent and not a continuation of the original suit; questions of title cannot be adjudicated in small causes court.

JUDGMENT :

SARAL SRIVASTAVA, J.

1. Heard learned counsel for the petitioners and Sri Pankaj Agarwal, learned counsel for the respondents.

2. The petitioners through the present petition under Article 227 of the Constitution of India have assailed the order dated 25.04.2018 passed by Judge Small Causes Court, Saharanpur in Execution Case No. 27 of 2002 (Kewal Kishore Vs. Atmaram and others) whereby learned judge has rejected the application No. 59C of the petitioners in Execution Case No. 27 of 2002 by which the petitioner has sought the impleadment in Execution Case No. 27 of 2002 and the order dated 04.05.2018 passed in Misc. Civil Appeal No. -NIL of 2018 passed by District Judge, Saharanpur affirming the order of the trial court rejecting application No. 59C of the petitioners.

3. The facts, in brief, are that respondent No. 1 Kewal Kishore instituted SCC Suit No. 64 of 1978 against respondent Nos.2 to 7 for eviction from one shop on the grounds of default in payment of rent. The SCC Suit No. 64 of 1978 was decreed by the trial court vide judgment and decree dated 13.08.1993. The respondent Nos.2 to 7 thereafter preferred SCC Revision No. 108 of 1993. The Revision was also dismissed by the revisional court vide judgment and decree dated 22.08.1994. The Apex Court by order dated 30.11.2000 in Special Leave Petition No. 16567 of 1992 affirmed the decision of the trial court dated 13.08.1993.

4. Respondent No. 1, thereafter, put the decree for execution which was numbered as Execution Case No. 27 of 2002.

5. In the said case, after about 14 years, the petitioners filed an application 59C on 18.03.2016 praying for impleadment. The application of the petitioners does not refer to any provision of law under which the said application was filed. Application No. 59C of the petitioners is reproduced herein-below:

6. Against the said application No. 59C, respondent No. 1 filed objection 104C contending inter alia that the facts narrated in application No. 59C of the petitioners are incorrect. Respondent No. 1 categorically stated that if there was any arbitration award between Gurudas Mal and his son and daughters and that had been made rule of the Court in Original Case No. 285 of 1990, the concerned person in whose share the shop had fallen would have filed an application for impleadment which had not been done. He also denied the fact that the petitioners became owners of the shop in question under the decree in Original Suit No. 19 of 1996. Besides the aforesaid plea, respondent No. 1 raised several other pleas for rejecting the application 59C of the petitioners.

7. The Executing Court vide order dated 25.05.2018 rejected the application on the ground that in a suit before small causes court only issue that arises for consideration is the relationship of landlord and tenant and the question of title is not to be gone into such suit whereas the issue which has been raised by the petitioners in their application No. 59C requires determination of title, therefore, the application is misconceived. The trial court held that no explanation has been tendered by the petitioners in filing the application after 14 years from the date of filing Execution Case, and therefore, the application is nothing but an abuse of process of the court and it is a fit case in which the application should be dismissed with costs.

8. Thereafter the petitioners preferred an appeal registered as Misc. Appeal No. NIL of 2018 which was also dismissed by the learned District Judge, Kanpur Nagar vide order dated 04.05.2018 affirming the order passed by the Executing Court.

9. Challenging the aforesaid order, learned counsel for the petitioners has contended that the Executing Court, as well as the Appellate Court, has erred in law in rejecting the application No. 59C of the petitioners inasmuch as the petitioners had demonstrated that the shop in question had come in their share under decree passed in Original Suit No. 247 of 1996 and as the petitioners became owner of the