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S.C. SHARMA versus III ADJ

High Court of Judicature at Allahabad

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S.C. Sharma v. Iii Adj - WRIT - C No. 11498 of 1987 [2006] RD-AH 20657 (6 December 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Court No. 28)

Civil Misc. Writ Petition No. 11498 of 1987

Suresh Chandra Sharma Versus III Additional District Judge, Moradabad and others.

Hon'ble S.U.Khan J

Heard learned counsel for the parties.

Landlord petitioner filed SCC suit No. 150 of 1978 against tenant respondent No.3 Mohd Farooq for eviction and recovery of arrears of rent. It appears that the rate of rent was Rs.5/- per month. Suit was decreed by JSCC on 4.11.1980. Through the said decree both the reliefs were granted i.e for eviction and for recovery of arrears of rent. Against the said decree revision being SCC Revision No. 251/80 was filed which was dismissed on 8.2.1982. Thereafter writ petition was filed which was also dismissed. Thereafter petitioner decree holder filed execution application, which was registered as Execution Cast No. 5 of 1982 on the file of JSCC/ Munsif Sambhal Moradabad. In the said execution case tenant respondent No.3 filed objections under section 47 C.P.C on 2.4.1983. In the said objections, it was stated that on 24.2.1983 decree holder received the amount of the decree and had signed the receipt in token thereof hence decree could not be executed as it had been fully adjusted and fresh agreement of tenancy had taken place through the said receipt at the rate of Rs.40/- per month. Copy of the receipt has not been filed along with writ petition however the certified copy of the said receipt has been supplied today by learned counsel for the petitioner. The language of the receipt is reproduced below:

"I hereby certify that JD Mohd Farooq in Execution No. 5/1982, pending in JSCC of (Munsif) Sambhal paid me Rs.1500/- toward the total claim in the decree on 24.2.1983. The JD is bound to pay rent from 1.5.1983 at rate of Rs.40/- per month. This payment satisfies the decreetal dues and for ejectment. The deposits in court shall be withdrawn by the decree holder."

Petitioner out rightly denied having singed any such receipt or received Rs.1500/- or any other amount from the tenant. The executing court through order dated 30.5.1986 held that receipt was genuine and struck off the execution. Against the said order SCC Revision No. 117 of 1986 was filed. Revisional court in para 21 held that on the basis of evidence, it was not satisfied about the genuiness of the receipt however as he was hearing revision under section 25 PSCC Act hence he could not reverse the findings of fact recorded by the trial court. Ultimately revision was dismissed on 5.2.1987, hence this writ petition.

There was absolutely no sense in making any payment to the landlord out of Court when execution proceedings had started. The tenant was very much aware of execution proceedings as in the receipt itself number of execution case was mentioned. If any can promise was to be entered into at the execution stage then the same should have been filed in the executing court in accordance with Order 23 Rule 3 C.P.C read with section 141 C.P.C. The alleged receipt is not signed by the tenant hence it does not confirm to the requirement of Order 23 Rule 3 C.P.C according to which the agreement or compromise should be in writing and singed by the parties. Moreover in the receipt it is not mentioned that fresh tenancy was being created in spite of decree for ejectment. The receipt states that payment satisfies the decreetal dues and for ejectment. Decree for money / arrears of rent could be satisfied by accepting the money however as it was not mentioned in the decree that eviction could be avoided by the tenant by paying certain amount hence there was no question of satisfaction of the decree for eviction. It can not be read in the said receipt that decree holder gave up his right of eviction granted to him under the decree.

When the plaintiff filed the suit for eviction, contested the revision and writ petition proceedings and thereafter filed execution case there was no sense of giving up his right for eviction.              

Apart from above the receipt could not have any effect on execution in view of Order 21 Rule 2 C.P.C according to which "where any money payable under a decree of any kind is paid out of court,[or a decree of any kind is otherwise adjusted] in whole or in part to the satisfaction of the decree holder, the decree holder shall certify such payment or adjustment to the court whose duty it is to execute the decree, and the court shall record the same accordingly."

Under Sub Rule (2) of the said rule if the decree holder fails to intimate the court then the judgment debtor may inform the court of such payment or adjustment. Under Article 125 Limitation Act such information is to be given within 30 days. In the instant case, it was given after more than 30 days hence no reliance could be placed thereupon.

Accordingly writ petition is allowed. Both the impugned orders are set-aside.

Respondent No.3 is at liberty to file suit for recovery of the amount of Rs.1500/-, which was allegedly paid by him to the decree holder petitioner subject to the law of limitation. If such a suit is filed then the court shall record independent finding regarding payment of the aforesaid alleged amount of Rs.1500/- without being influenced by the finding in that regard recorded either in the order dated 20.5.1986 or in the judgment of revisional court dated 5.2.1987 which are challenged through this writ petition.

As decree holder has been deprived of his right to execute the decree for more than 20 years due to illegal action of respondent No.3 hence respondent No.3 is liable to pay proper damages for this period.

Accordingly it is directed that respondent No.3 is liable to pay damages for use and occupation at the rate of Rs.400/- per month for the period since the first order i.e. 30.5.1986 till actual vacation. The said amount may be recovered through amendment in execution application, which was registered as execution case No. 5 of 1982.

Matter is remanded to the executing court to restore the execution case No. 5 of 1982 on its original number and proceed therewith in accordance with law and observations made above.

Both the parties are directed to appear before the executing court on 16.1.2007.

Waqar

6.12.2006


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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