Thursday, 31 October 2019

Whether landlord can execute order of grant of interim rent even though defence of tenant is struck off?

 The impugned order was passed by the Court under Order 15-A of the Code of Civil Procedure directing the defendant to pay rent and deposit arrears. No fault can be found with such a direction. In this case, the defendant failed to obey the order and failed to deposit the arrears. The consequence of such failure is given in the same Rule 1 of Civil Procedure Code. The Rule says that if such order is not obeyed, the defence shall be struck out. The learned Counsel for the applicant/plaintiff contended that striking out of defence is a mode of enforcement while execution by attachment is mode of satisfaction. In 1999 (1) SCC 405, Smt. Kuldip Kaur v. Surinder Singh, it is observed as follows:

6. A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. Sentencing a person to jail is a 'mode of enforcement'. It is not a 'mode of satisfaction' of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. Be it also realized that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance 'without sufficient cause' to comply with the order. It would indeed be strange to hold that a person who 'without reasonable cause' refuses to comply with the order of the Court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears.
6. Therefore, even though the remedy by way of striking out of defence is available, that does not deprive the plaintiff to resort to mode of satisfaction. Ordinarily, therefore, an order can be executed for satisfaction. 
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Civil Rev. Appln. No. 1193 of 1999

Decided On: 13.03.2007

Gwaldas Shivkisanji Lakhotia Vs. Bapurao Arjunji Bandabuche


Hon'ble Judges/Coram:
C.L. Pangarkar, J.

Citation: 2007(4) MHLJ 698,2007(3) ALLMR 544
Read full judgment here:Click here
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