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PREM KISHAN GARG versus SUBODH KUMAR & ORS.

High Court of Rajasthan

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PREM KISHAN GARG v SUBODH KUMAR & ORS. - CW Case No. 5688 of 2005 [2005] RD-RJ 1564 (14 November 2005)

SB Civil Writ Petition No.5688/2005

Prem Kishan Garg v. Shri Subodh Kumar & Ors. 14th December, 2005

Date of Order ::

HON'BLE MR.JUSTICE GOVIND MATHUR

Mr. R.R.Nagauri, for the petitioner.

Mr. Manish Sisodia]

Mr. Pankaj Sharma ] for the respondents. ....

A suit preferred by the plaintiff petitioner for recovery of rent and eviction from premises was accepted by judgment dated 7.12.2004, accordingly a decree for ejectment and recovery of arrears of rent was passed. The defendant respondent No.3 as well as defendant respondents No.1 and 2 by two separate appeals challenged the judgment and decree dated 7.12.2004 before the court of District Judge,

Bhilwara. Alongwith appeals, respondents also preferred application under Order 41 Rule 5 CPC seeking stay of execution proceedings during pendency of the appeals. The appeals were transferred for their adjudication to learned Additional District Judge

No.1, Bhilwara who by two separate orders dated 11.5.2005 stayed execution proceedings subject to the condition that the appellants either deposit arrears of rent in accordance with the judgment of trial court and further make payment of rent at the rate of

Rs.150/- per month or place on record a receipt or certificate issued by the Municipal Board, Bhilwara with regard to deposition of arrears of rent and further pay rent at the rate of Rs.150/- per month.

The instant writ petition is preferred by the plaintiff petitioner giving challenge to the aforesaid orders.

It is contended by the petitioner that learned trial court by judgment dated 7.12.2004 after analytical discussion found that the plaintiff is the landlord and the defendant respondent No.3 was the tenant. The trial court also held that the Municipal

Board was not at all authorised to take rent from

Bundu as the Municipal Board never took possession of the premises concerned from the plaintiff petitioner, as such the appellate court erred while staying execution proceedings subject to the condition of deposition of arrears of rent with the Municipal Board.

Heard counsel for the parties.

From perusal of judgment dated 7.12.2004 it is apparent that the trial court held the plaintiff petitioner landlord and, therefore, declared entitled for getting possession of the premises and also for recovery of arrears of rent and monthly rent at the rate of Rs.150/- per month till the eviction take place. The Municipal Board, Bhilwara is not party to the proceedings as such can be termed as stranger so far as present suit is concerned. In view of it I am of the considered opinion that the appellate court below erred while staying execution of decree dated 7.12.2004 subject to the condition that the defendant respondents submit a receipt or certificate issued by the Municipal Board, Bhilwara with regard to deposition of arrears of rent and payment of rent in accordance with the judgment dated 7.12.2004.

Accordingly the orders impugned dated 11.5.2005 passed by learned Additional District Judge

No.1, Bhilwara in appeal No.2/05, Bundu Shah v.

Premkishan, and in appeal No.3/05, Subodh Kumar v.

Premkishan, is modified, the condition with regard to stay of execution proceedings subject to submission of receipt or certificate issued by Municipal Board,

Bhilwara with regard to deposition of arrears of rent and for the payment of monthly rent is quashed. The application preferred by the defendant respondents

No.1, 2 and 3 under Order 41 Rule 5 CPC is accepted with a direction to stay execution of decree dated 7.12.2004 subject to condition that they deposit arrears of rent as ordered by the trial court and further pay and deposit monthly rent at the rate of

Rs.150/- per month with the trial court from the date of decree within a period of one month from today.

With the directions above, the writ petition stands disposed of.

(GOVIND MATHUR),J.

Kkm/ps.


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