Friday, 21 July 2017

Whether decree can be set aside in execution proceeding for error of procedure?

At the outset, it must be borne in mind that the jurisdiction under Section 47 of the C.P.C. conferred on the Executing court is limited and narrow. The liberty to object to the executability and enforceability of a decree by raising objections before the executing court, does not mean that the objector can re-open the matter and the proceedings. That is not intended by the Legislature. He is not permitted to urge such pleas and matters which would require reopening of the decree on concluded issues. In other words, this jurisdiction cannot be equated with that of an Appeal or Review. It being extremely limited and narrow, the objections must fall within the ambit and scope of the same. If they fall outside the purview of the said limited power, then, the executing court is not empowered to take note of them.

15. If any authority is needed for this purpose, then, a reference can usefully be made to a decision of the Supreme Court in the case of Dhurander Prasad Singh v. Jaiprakash reported in MANU/SC/0381/2001 : [2001]3SCR1129 . Therein, the Supreme Court observed that the powers of the Court under Section 47 are quite different and much narrower than its powers of appeal, revision or review. Exercise of powers under Section 7 of the Code is microscopic and lies in a very narrow inspection hole.
An erroneous or an illegal decree can be set aside only if party aggrieved by it invokes the remedies prescribed in law to impugn and challenge it. If it does not do so, then, in execution proceedings, the decree cannot be set aside on the ground of any illegality or it being vitiated by errors of procedure. Therefore, there is no merit in the argument of Mr. Kulkarni that the executing court lacked inherent jurisdiction to entertain and try the suit and hence, the decree is a nullity. The objections in that behalf have been rightly over-ruled and the concurrent orders and do not suffer from any error apparent or perversity so as to call for interference in writ jurisdiction.

Writ Petition No. 4965 of 2008

Decided On: 12.06.2009

 Smt. Savitribai A. Salvi
 Smt. Suman Navgire and Ors.

Hon'ble Judges/Coram:
S.C. Dharmadhikari, J.

Citation: 2009 Bom Rent Cases 441
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When tenant is liable to be evicted for non payment of arrears of rent?

 It is not in dispute that the tenant/respondent had availed the benefit of Section 14(2) of the Act by its order dated 3rd of December, 2001 passed by the Additional Rent Controller, Delhi. Since we have already come to the conclusion that since the tenant/respondent has failed to deposit rent in compliance with Section 27 of the Act because in the present case, admittedly, landlord/appellants had not accepted any rent tendered by the tenant/respondent within the time referred to in Section 26, it was the duty of the tenant to deposit such rent before the Rent Controller as prescribed in Section 27 of the Act. Admittedly, this step was not taken by the respondent which is mandatory in nature and, therefore, we must hold that the tenant/respondent had committed a second default in payment of rent and is, therefore, liable to be evicted from the suit premises.

Civil Appeal No. 4162/2009 (Arising out of SLP (C) No. 10005 of 2008)

Decided On: 08.07.2009

Sarla Goel and Ors.
Kishan Chand

Hon'ble Judges/Coram:
Tarun Chatterjee and H.L. Dattu, JJ.
Citation:(2009) Bom Rent Cases 519
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Whether it is permissible for landlord to inspect tenanted premises?

 The contention that now the matter is fixed for framing issues and therefore the landlord wants to collect the material for the purpose of his case and this amounts to collection of material are unacceptable. There is no restriction whatsoever created by the legislature whereby the inspection of the premises by the landlord must be alone. The landlord can in a given case inspect the premises alone and or with architect or with such other person, subject to notice. I see there is no reason such application should be rejected. In the present case as noted above it was not an application under Order 26 of Civil Procedure Code (CPC) after framing of the issues wherein the landlord applied for appointment of a commissioner. If Section 28 nowhere restricts, I see there is no reason to reject the case of the landlord considering the scope and purpose of the Order 26 of the CPC.

5. According to me Section 28 of the Act is very clear whereby the landlord at any point of time after issuing notice can inspect the premises alone or with an architect or other such person. Taking all this into account in my view, the impugned order dated 28.8.2008 deserves to be quashed and set aside to the extent as referred above. The application filed by the landlord under Section 28 is allowed. 

Writ Petition No. 7181 of 2008

Decided On: 04.12.2008

 Empeegee Portfolio Services Pvt. Ltd.
Sharada Navinchandra Shah

Hon'ble Judges/Coram:
Anoop V. Mohta, J.

Citation:(2009) Bom Rent Cases 202
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Basic principles to be followed by court while granting stay to execution of eviction decree

We are, therefore, of the opinion that the tenant having suffered a decree or order for eviction may continue his fight before the superior forum but, on the termination of the proceedings and the decree or order of eviction first passed having been maintained, the tenancy would stand terminated with effect from the date of the decree passed by the lower forum. In the case of premises governed by rent control legislation, the decree of eviction on being affirmed, would be determinative of the date of termination of tenancy and the decree of affirmation passed by the superior forum at any subsequent stage or date, would not, by reference to the doctrine of merger have the effect of postponing the date of termination of tenancy.
The second issue was answered as follows:

With effect from that date (the passing of the decree of eviction), the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree.
We are in respectful agreement with the decision of the Court in Atma Ram Properties.

46. In light of the discussions made above we hold that in an appeal or revision preferred by a tenant against a order or decree of an eviction passed under the Rent Act it is open to the appellate or the revisional Court to stay the execution of the order or the decree on terms, including a direction to pay monthly rent at a rate higher than the contractual rent. Needless to say that in fixing the amount subject to payment of which the execution of the order/ decree is stayed, the Court would exercise restraint and would not fix any excessive, fanciful or punitive amount.

47. In the case in hand, the High Court has fixed the amount of Rs. 5,40,000/- per month with reference to the Stamp Duty Ready Reckoner and hence, its reasonableness cannot be doubted. In fairness to Mr. Lalit he did not challenge the fixation of the amount on that ground.


Civil Appeal No. 5835 of 2009 

Decided On: 27.08.2009

The State of Maharashtra and Anr.
Super Max International Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:
B.N. Agrawal, G.S. Singhvi and Aftab Alam, JJ.

Citation:(2009) Bom Rent cases 384,AIR 2010 SC 722
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