The court confirmed that the absence of substantial proof of tenancy nullifies the appellant's claims against the execution of a prior decree.

JUDGEMENT

#. Mohanlal Nathalal Marvadi the applicant original appellant has filed this Revision Application challenging the judgment and order dated 1.11.2001 passed by the Appellate Bench of the Court of Small Causes at Ahmedabad in Appeal from Order No. 95 of 2001. By the impugned judgment the Appellate Bench has dismissed the appeal filed by the appellant-applicant herein. The Appellate Bench has confirmed the judgment and order dated 18.9.2001 passed by the Judge, Court of Small Causes No.13, Ahmedabad passed order below exh.. 53 in Darkhast No. 103 of 1982. #. The facts giving rise to the present Revision Application are as under:

2.1 The respondent-plaintiff Alabax Nurbhai Shaikh had filed HRP Suit No. 1409 of 1988 against tenant-Hiraben. In the said proceedings a decree was passed against the tenant Hiraben ion 6.2.1998. The present respondent thereafter has filed execution petition No. 103 of 1998 on 3.7.1998 wherein a possession warrant has been issued against the judgment debtor and a jungam warrant was also issued. It is a matter on record that while executing the possession warrant the premises was identified and the executing officer has also tallied its four corners and out of the three premises the possession of two premises were handed over to the plaintiff viz. the present respondent and it reveals from the record of this case that for rest of one premises, the defendant to the suit has promised to vacate the premises within one month and to hand over the same to the plaintiff land[lord.

Thus on the said grounds at the request of the judgment debtor possession of one premises was not taken as the judgment debtor had promised to vacate the premises within one month. Thereafter instead of handing over the possession to the respondent, the original judgment debtor Bai Hira moved application exh.16 which is an obstruction application, whereby she had prayed that the respondent landlord may be restrained from parting with the possession of two premises which they have recovered from her and she has also prayed that the respondent-landlord be restrained from taking the possession of remaining one room from her. In that show cause notice was issued and in the meantime she filed Civil Appeal No. 38 of 1999 before the Appellate Bench of the Court of Small Causes and she obtained stay against the execution of the degree. In the said Civil Appeal she has challenged the decree passed in HRP Suit No.1409 of 1988. The said appeal was not admitted as the delay was not condoned and therefore, the earlier stay granted was extended and the judgment debtor-Hiraben again filed Revision Application no. 596 OF 1999 before this Court. The said Revision Application was also rejected on 28.7.1999. The order of the Appellate Bench as well as the order of this Court are on record of this case.

2.2. Thus after having finished the first round of challenging the validity of the decree passed in HRP Suit No. 1409 of 1988, it is matter of record that the present appellant has filed one HRP Suit No.. 1316 of 1999 wherein he has prayed that he is a tenant of the premises bearing survey No.42/36/A/23 and the respondent may not take possession without following due process of law. The said suit was also resisted by the defendant wherein the court has made the rule absolute during the pendency of the suit against which present respondent filed Appeal From Order No.. 73 of 2000 which is also rejected by the Appellate Bench. The Appellate bench in the order portion of the said A.F.O. specifically made an order that the respondent is not debarred or prevented from proceeding with the execution application NO. 103 of 1998 in a lawful manner. Simultaneously, it was also made clear that the respondent no.1 namely, the prese