The first point having answered against the petitioner and in favour of respondent Nos. 4 and 5, it is really not necessary to go into legality and validity of the decree under execution. Assuming for the sake of argument that the decree is a legal and valid decree obtained and the same can be validly executed by initiating execution proceedings, but during the pendency of execution proceeding statute having been amended with retrospective effect the decree has become unexecutable. The decree even if legal, cannot be allowed to be executed in view of the retrospective amendment to the Bombay Rent Act. The executing Court can always take into account such change in law during the pendency of the execution proceedings so long as judgment debtor is in possession of the property which is a subject matter of decree. All questions, which can be gone into in a suit can also be gone into in the said proceedings. It is open to an obstructionist in proceedings started under Order 21 Rule 97 to raise a contention that decree being a nullity is not liable to be executed. This is so despite the fact that he cannot establish his independent right to possession. Matter can be investigated under Order 21 Rule 101, Mani Nariman v. Phiroz 1991 M.L.J. 376.
29. Apart from the above, the case of the respondents/obstructionists even otherwise stands on a higher footing. The objection filed by them under Order 21 Rule 97 of the Code of Civil Procedure were rightly adjudicated upon by the executing Court. The Apex Court in the case of Ashan Devi v. Phulwasi Devi, 2003(9) Scale 783 while interpreting Order 21 Rule 97 of the Code observed that Legislature purposely amended Order 21 to enable third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. No separate suit is required to be filed. Proceedings under Order 21 Rule 97 of the Code are required to be tried as suit. In this view of the legal possession, no fault can be found with the impugned judgment and decree passed by the lower appellate Court.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 4323 of 1999
Decided On: 29.06.2004
Gordhandas Lalchnd Vs. Kubchand Tirthdas Tailor and Ors.
Hon'ble Judges/Coram:
V.C. Daga, J.
Citation: 2005(1) MHLJ 396
1. This petition challenges the order dated 23.2.1999 passed by the Appellate Bench of the Small Cause Court, Mumbai, whereby the appeal preferred by the respondent Nos. 4 and 5- obstructionists came to be allowed and the obstructionist notice came to be set aside.
THE FACTS:
The facts giving rise to the present petition in nutshell are as under:
2. The petitioner is the owner of a property known as "Sudama House" situated at Kandivali, Mumbai. Respondent No. 1 was his monthly tenant occupying a portion of an Otla (i.e. verandah admeasuring (6 x 3') by the side of shop No. 6 located in the said 'Sudama House'.
3. The Respondent No. 1 was carrying on his tailoring business from the said Otla (hereinafter referred to as "the suit premises") provided with electricity supply. He had paid rent till May 1964. He, thereafter, failed and neglected to pay any rent. Respondent No. 1 left Mumbai and went to Godhara (Gujarat), his native place sometime in the year 1963. He, while leaving Mumbai, assigned his tenancy rights in favour of respondent Nos. 2 and 3 and put them in possession of the suit premises. Since rent was not paid for several months and respondent Nos. 2 and 3 were inducted illegally as sub-tenants, petitioner terminated tenancy of respondent No. 1 by notice dated 18.1.1965 issued under Section 106 of the Transfer of Property Act. The first notice could not be served on respondent No. 1 at Mumbai since he had moved to Godhara. However, another notice sent to respondent No. 1 was duly received by him. Notices were also served on respondent Nos. 2 and 3. None of the notices was complied with by the tenant as such eviction suit bearing RAE Suit No. 1239 of 1966 came to be filed against all the respondents on 25.2.1966. Respondent No. 2 died on 2.11.1965. His heirs were not brought on record. A joint written statement was filed by respondent Nos. 1 and 3. In the said written statement it was contended that defendant No. 1 had transferred his business of selling books in favour of respondent Nos. 2 and 3 as a going concern under a Deed of Assignment dated 25.2.1965 as such they were protected under Section 15 of the Bombay Rent Act.
4. With the above pleadings on record, issues were framed and suit was posted for trial. Original plaintiff-landlord herein led his evidence inconsonance with plaint pleadings. The respondent No. 1 did not enter the witness box. However, respondent No. 3 in his evidence stated that he was doing business of selling books jointly with respondent No. 1.
5. The learned Judge of the Small Causes Court by his judgment and order 27.8.1971, decreed the suit, inter alia; holding that the theory of assignment introduced in defence was an afterthought and that assignment deed was bogus. Respondent No. 3 did not prefer any appeal against the said judgment, though respondent No. 1 filed an appeal which was dismissed on 26.3.1981.
6. The petitioner initiated execution proceedings. He tried to execute the decree against the respondent Nos. 4 and 5 herein; who claimed to be in possession being son and grand-son, the legal heirs of the original respondent No. 2, who died on 2.11.1966. They obstructed the warrant of possession and claimed to be in possession of the suit premises.
7. The petitioner took out Obstructionist Notice bearing B.N. No. 177/1981, against respondent Nos. 4 and 5 for removal of obstruction caused by them. The said notice was made absolute by the executing Court by an order dated 24/31.1.1995 and obstruction was ordered to be removed. Respondent Nos. 4 and 5 preferred appeal being Appeal No. 84 of 1995, which was allowed by the appellate Bench of the Small Causes Court by an order dated 23.2.199, holding that (a) suit against defendant No. 2 had abated (b) the findings were given by the trial Court regarding validity of Deed of Assignment holding that it was not binding on respondent No. 2 as the suit qua him had abated (c) the decree passed against respondent Nos. 1 and 3, thus, was not binding on respondent No. 2, consequently, respondent Nos. 4 and 5 were not bound by the said decree; and lastly, it was held that in view of the amendment to Section 15(2) to the Bombay Rent Act, in 1987, the sub-tenancy created in favour of defendant No. 2 though illegally, stands regularised as such respondent Nos. 4 and 5 have become statutory tenants protected under the provisions of the Bombay Rent Act. This judgment and order of the lower appellate Court is the subject matter of challenge in this petition filed under Article 227 of the Constitution of India.
Submissions:
8. Shri Rana, learned Senior Counsel appearing for the petitioner contends that in a suit for eviction by a landlord, a sub-tenant is not a necessary party. He further contends that finding given by the trial Court which was confirmed by the appellate Court regarding validity of Deed of Assignment is a finding in rem and it operates as an issue estoppel. He submits that the original defendant No. 1 has not filed any appeal against the judgment of the trial Court and appeal filed by respondent No. 3 came to the dismissed. Respondent Nos. 4 and 5 if were in joint possession of the suit premises with respondent No. 1 as claimed, they ought to have joined respondent No. 1 in the appeal, which they did not do as such appeal preferred by them was misconceived.
9. Shri Rana contends that the object of the Rent Act; inter alia; is eviction of tenants and sub-tenants under certain circumstances. The right of the landlord to get eviction decree cannot be defeated by a colourable Deed of Assignment.
10. He, thus, submits that since deed of assignment is held to be invalid, original defendant Nos. 2 and 3 claiming to be the sub-tenants, must go out with defendant No. 1. They do not have any independent right in the suit premises, which is a non-residential premises. In his submission, respondent Nos. 4 and 5 who are claiming to be the sub-tenants must also vacate the suit premises. He further pointed out that the deed of assignment was executed on 25.2.1965 when respondent No. 5 was a school going minor child and respondent No. 3 was a full time employee of BEST from 1966 who retired only in 1986. That they cannot get higher right than that of respondent No. 2. That they are and were not in possession as such they cannot and could not have claimed protection of 1987 Amendment. That in any case, since respondent Nos. 4 and 5 are not claiming through respondent No. 1 as such they cannot claim benefit under Section 15(2). Shri Rana, therefore, submits that the petition needs be allowed and judgment and order of the lower appellate Court and consequent decree is liable to be set aside.
11. Shri Rana further submitted that original respondent No. 3 as also respondent No. 1, who was the original tenant claimed protection of Bombay Rent Act for respondent Nos. 2 and 3 as also for heirs of respondent No. 2 under a Deed of Assignment dated 25.2.1965 under which respondent No. 1, as assignee sold to respondent No. 1, as assignee, respondent Nos. 2 and 3 absolutely his business as going concern together with entire stock-in-trade, business, furniture and tenancy rights of the suit premises incidental thereto. Their claim was not of sub-tenancy but their claim was of tenancy by virtue of the Notification issued under Section 15(1) of the Rent Act. The finding recorded by the trial Court document of assignment as bogus as also regarding alleged tenancy having become final and conclusive, it is binding on the parties.
12. Shri Rana further contends that tenancy was joint and there was no division of the premises or rent payable in respect thereof by the defendant Nos. 2 and 3 as such the decree passed in such a suit would bind all the parties. Shri Rana relied upon judgment of the Apex Court in the case of Textile Association (India) Bombay Unit v. Balmohan Gopal Kurup, MANU/SC/0358/1990 : AIR1990SC2053 .
13. Shri Rana on the above factual as well as legal contentions prayed for setting aside the impugned judgment and order of the appellate Court and prayed for making rule absolute in term of prayers in the petition.
PER CONTRA:
14. Shri Niranjan Pandit, appearing for respondent Nos. 4 and 5 strongly opposed this petition. It was contended that by virtue of amendment of 1987, all sub-tenants became lawful tenants as such sub-tenancy created in 1973 though illegal, came to be legalised. Respondent No. 2 and/or his heirs have become protected sub-tenants by virtue of retrospective application of amendment to the Rent Act. He contends that when the special statute i.e. Bombay Rent Act does not contain provisions requiring the notice for termination of tenancy except for instituting a suit on the ground of arrears of rent under Section 12(2) as such question of notice of termination does not arise and, therefore, concept of termination of tenancy under Section 106 of the Transfer of Property Act is of no consequence in view of Supreme Court judgment in the case of Damadilal v. Parashram reported in AIR 1973 SC 2299.
15. Shri Pandit further contended that decree has been passed after death of respondent No. 2 without impleading his legal heirs as such suit had abated against respondent No. 2. The eviction decree, therefore, does not bind the obstructionists. That it is well settled principle of law that it is absolute domain of the plaintiff whether to join sub-tenants or not, but once sub-tenant is joined and died during the pendency of the suit, plaintiff has to substitute name of the decreased by following procedure laid down under Order 22 Rule 4 of the C.P.C. That assuming that the suit did not abate and a valid decree came to be passed and confirmed against defendant No. 1 and 3, binding on defendant No. 2 and his heirs i.e. respondent Nos. 4 and 5, even then, such decree for eviction on the ground of subletting cannot and does not survive after insertion and amendment to Sub-section (2) of Section 15. Shri Pandit, thus submit that the petition is liable to be dismissed on this short count.
16. In rejoinder, Shri Rana, learned Counsel appearing for the petitioners submitted that if decree is against defendant Nos. 1 and 2 (respondent Nos. 1 & 3 herein) the same is binding on them. It is also equally binding on respondent Nos. 4 and 5 (obstructionists) since they are joint tenants as such, they were not required to be made parties to the suit.
17. Shri Rana also contended that respondents Nos. 4 and 5 are not entitled to protection under the amendment of 1987 to the Bombay Rent Act for the following reasons:
i) The claim being based on the Deed of Assignment which was held to be bogus.
ii) The written statement filed by defendant Nos. 1 and 3 claimed protection not only for defendant No. 3, but also for heirs of defendant No. 2 (Respondent Nos. 4 and 5).
iii) The claim being based on joint tenancy decree passed against defendant Nos. 1 & 3 will bind the legal heirs of deceased defendant No. 2; (Respondent Nos. 4 and 5)
(iv) Respondent Nos. 4 & 5 knew about the proceedings, yet, they came at the scene at a late stage as obstructionists in order to delay and defeat the legitimate rights of petitioner arising stage a from eviction decree.
(v) The suit premises is not a room but a part of otla and it is a commercial premises and not residential premises.
(vi) The respondent Nos. 4 and 5 are running their business in altogether new premises and that suit premises is lying unused being locked for more than 15 years.
(vii) The suit was decreed on 28.8.1971. Appeal was dismissed on 26.3.1981. It is only when decree was sought to be executed respondent Nos. 4 Appeal and 5 they came forward as obstructionists. They never challenged original decree;
(viii) Respondent Nos. 4 and 5 could not be said to be in possession of the suit premises as respondent No. 4 was a full time employee of the be said Municipal Corporation (BEST) in 1966 and had retired in Respondent No. 5 was a minor school going boy Municipal in 1966. As such, there is no question they being in possession of the suit premises.
(ix) Respondent Nos. 4 and 5 did not challenge the legality and validity of the original decree. It is only when decree was sought to be executed in 1981, that the respondent Nos. 4 and 5 obstructed the execution, which also implies that they were not in possession prior to 1973, more so, when respondent No. 4 was a full-time employee of the Municipal Corporation (BEST) as stated hereinabove. As such, no protection either under Section 14 or Municipal Section 15A of the Bombay Rent Act can be claimed. Shri Rana refuted the defence put up by respondent Sections Nos. 4 and 5.
Points for Determination:
(i) Whether respondent Nos. 4 and 5 are entitled to protection under Section 15-A of the Rent Act which was brought on the statute by Maharashtra Act 18/1987 w.e.f. 1.2.1973.?
(ii) Whether decree in question is legal and valid and is binding on respondent Nos. 4 and 5?
Findings:
Point No. 1
12. Let me now examine whether decree for possession can be executed against the respondent Nos. 4 and 5 as a result of Maharashtra Act 18/1987, whereby Bombay Rent Act was amended with retrospective effect. This issue, in my opinion, should determine the fate of the entire case conclusively.
18. Learned Counsel for respondent Nos. 4 and 5, without admitting creation of illegal sub-tenancy, alternatively contended that assuming that the original defendants had committed breach of provisions of Section 13(1)(e) of the Bombay Rent Act, even then there could not have been decree for eviction under said section of the Rent Act, as the original defendant Nos. 2 and 3 were entitled to claim protection (defendant No. 2 since deceased) and present respondent Nos. 4 and 5 being legal heirs of defendant No. 2 are entitled to claim protection under Section 15(2) of the Rent Act, which came to be amended by Mah.Act 18/1987 with retrospective effect from 1.2.1973. He pointed out that execution proceedings were pending when this amendment was introduced, as such, respondent Nos. 4 and 5 will be entitled to protection thereof. In this view of the matter, he contended that there could not have been any decree against respondent Nos. 4 and 5 under Section 13(1)(e) of the Bombay Rent Act, on the ground of alleged unlawful assignment of tenancy and/or subletting of the premises.
19. In order to understand the legal controversy raised herein, let me turn to the relevant provisions first:
Section 5(11) defines tenant and relevant part is Section 5(11)(b), which is as follows:
Section 5(11)(b):
Any person, remaining after determination of the lease, in possession, with or without the consent of the landlord, of the premises leased to such person or his predecessor who has derived title before the 1st day of February 1973"
Section 14(1) 4 reads as under:
14. Certain sub-tenants and licensees to become tenant on determination of tenancy. (1) Certain sub-tenants and licensees to become tenant on determination of tenancy (1) when the interest of a tenant of any premises is determined for any reason, any sub-tenant to whom the premises or any part thereof have been lawfully sub-let before the 1st day of February 19 shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenant had continued.
20. Section 13(1) begins with, notwithstanding anything contained in this Act (but subject to the provisions of Sections 15 and 15(A), a landlord shall be entitled to recover possession of any premises if the Court is satisfied so far as the ingredients of Section 13(1)(e) are concerned. The said section reads as under:
"13(1)(e) That the tenant has, since the coming into operation of this Act, (unlawfully sublet) (or after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1973, unlawfully given on license, the whole or part of the premises or assigned or transferred in any other manner) his interest therein; 29.
Section 25 of the Amending Act (Maharashtra Act 18 of 1987) is as follows:
"Nothing contained in the principal Act, as amended by this Act, shall be deemed to authorize the re-opening of any suit or proceedings for the eviction of any person from any premises to which the principal Act applies as if such proceeding had been finally disposed of before the commencement of this Act.
Explanation:
For the purposes of this section, the suit or proceeding, as the case may be, shall not be deemed to have been finally disposed of, if in relation to that suit or proceeding, any appeal or proceeding is pending, or, if the period of limitation for preferring an appeal or proceeding as the case may be, had not expired before the commencement of this Act."
21. In view of the above amended provisions, the question arose before the Division Bench of this Court in the case of Prabulal C. Mandore (cited before) as to whether the writ proceedings are covered or not. The Division Bench held that the writ proceedings are very much within the sweep of Section 25 of the Amending Act 18 of 1987. In the said case, the writ petition was filed on 13th April 1981 and when it came up for hearing the amending Act was introduced on the statute book. The Division Bench held that the legislature wanted to regularise subletting which took place before the first day of February, 1973. The proceedings commenced by a suit for eviction of a tenant do not come to an end on the decision of the appeal or revision filed under the Bombay Rent Act. These decisions are liable to be challenged in the High Court either under Section 115 of the Code of Civil Procedure or under the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India, and therefore, if the proceedings were actually pending on the date of commencement of the Bombay Rent Act, then it could not be said that the case has been finally disposed of before the commencement of the Amending Act. The Division Bench in that case held that as subletting being prior to 1.2.1973, the sub-tenant was protected in view of the amended provisions of the Act.
22. In the present case, the writ petition was filed on 3.8.1999. The case of the plaintiffs was that the suit premises were sub-let by creating unlawful assignment in favour of the defendant Nos. 2 and 3 on 25.2.1965 when the property was conveyed to the defendant Nos. 2 and 3 and that they were allowed to claim to be assignees of the rights of defendant No. 1 (tenant). There is no dispute that the defendant Nos. 2 and 3 were and are in actual possession of the suit premises since. Even today, they are in actual possession and occupation of the suit premises. Therefore, the defendant Nos. 2 and 3 shall be entitled to claim protection under Section 15(2). This view is also supported by two judgments of this Court in the case of Somnath Gyanu Waghchaure and Ors. v. Mrs. Malatibai Gajanan Mhatre and Ors. And Lakhichand Punamchand Marwadi and Ors. v. Thakurnath Balasaheb Barse 1990(3) B.C.R. 511. In the case of Lakhichand Punamchand (supra). This Court held as under:
"..... The language in the Amending Act in its various sections leaves one in no doubt that notwithstanding the fact that a cause of action arisen on any day, all sub-tenants created despite the prohibition before 1st February, 1973 stood legalised. Further, in view of the language contained in Section 25 of the Amending Act, it is clear that irrespective of the date on which the suit was filed, if the suit or proceedings as mentioned in Section 25 of the Amending Act is pending, then the individuality attached to a sub-tenancy created before 1st of February, 1973 stands removed by virtue of provisions contained in Maharashtra Act No. 18 of 1987."
23. In the present case, trial Court decreed the suit on 27.8.1971 and ordered respondent Nos. 1 and 3 to hand over possession to the petitioner. Being aggrieved by the said judgment of the trial Court decreeing the suit, respondent No. 3 filed an appeal being Appeal No. 426/1971 before the Appellate Bench of the Small Cause Court. However, the said appeal came to be dismissed on 26.3.1981. When the petitioner sought to execute the said decree, respondents Nos. 4 and 5 obstructed the same and resisted the execution. This has resulted in petitioners' taking out Obstructionist Notice under the provisions of Order 21 Rule 97 of the C.P.C. When the above appeal came up for hearing in 1987 provisions of Bombay Rent Act came to be amended w.e.f. 1.2.1973. In 1995 when Obstructionist Notice came up for hearing, petitioner claimed protection under Section 25 of the Rent Act.
24. In case of Lakhichand Punamchand (supra), one of the question raised was whether writ petition under Article 227 of the Constitution of India was pending in this Court is covered under Section 25 of the Amending Act or not. The learned Single Judge while making reference to the judgment of Division Bench in the case of Prabulal Chhogalal Mandore (cited supra), held that since the sub-tenancy was created before 1.2.1973, it came to be legalize due to provisions introduced by the Maharashtra Act No. 18 of 1987 and protection under Section 15(2) was available and sub-tenant will have treated as having become deemed tenant under Section 14(1). Similar view has also been taken by another learned Single Judge in the case of somnath Gyanu Waghchaure and others (cited supra). In that case, it was held that as sub-tenancy was created prior to 1.2.1973, protection under Section 15(2) was available and Section 25 of the Amending Act covers writ proceedings which were pending before this Court. There are number of unreported judgments in this behalf. They were cited by the learned Counsel for the respondents. However, it is not necessary to make reference to them.
25. The aforesaid view also finds support from another unreported judgment of this Court in the case of Chaturbhuj Nanji v. Mrs. Arabai Hirji Taraporwala (Writ Petition No. 4088 of 1981 delivered on 30th/31st October 1995, wherein following the aforesaid line of decisions, the learned Single Judge dealt with one more shadow of the contentions as to whether benefit of Section 15(2) read with Section 14(1) would be available to a tenant whose tenancy has already been terminated by issuing notice of forfeiture prior to introduction of the Amending Act, while dealing with this shade of the contentions, the learned Single Judge observed as under:
"Even assuming that tenancy of respondent No. 3 was terminated by notice dated 29.4.1958 still there is no decree passed against the Respondent No. 3. (Decree was passed on 7.1.1969) and, therefore, the sub-tenancy which was created in favour of the plaintiffs on 11.8.1961 is protected. The question of saleable interest does not arise. The learned Counsel for the petitioner pointed out that the Apex Court in MANU/SC/0531/1986 : [1986]3SCR866 , Chandavarkar Sita Ratna Rao v. Ashalkata S. Gulam considered the provisions of Section 15(1) and Section 14(1) of the Bombay Rent Act. It was the case where the license was granted by the tenant before 1.2.1973 but after the termination of his tenancy by the landlord. The question arose whether the tenant is entitled to get the protection of Section 15(A) read with Section 14. The Apex Court considered its earlier judgment reported in MANU/SC/0381/1985 : AIR1985SC796 , Smt. Gian Devi Anand v. Jeevan Kumar and Ors. It was held as follows: If the Rent Act in question defined a tenant in substance to mean a tenant was continued to remain in possession even after the termination of the contractual tenancy till a decree for eviction was passed against him, the tenant even after the determination of the tenancy continued to have an estate or interest in the tenanted premises.
Discussing the interests of a statutory tenant and the contractual tenant, Bhagwati J. (as the learned Chief Justice then was) MANU/SC/0381/1985 : AIR1985SC796 of the report observed: ".....In one case, the estate or interest is the result of a contract while in the other, it is the result of a statute. But the quality of a estate or interest as the same in both cases." A.N. Sen speaking for the Court observed at page 696 (of SCR) (at page 803 of AIR) of the report "We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has been determined but who is protected against eviction by the statute has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute......"
Therefore, as a result of the discussions above, it appears that untill a decree of eviction was passed against the tenant, the tenant could have created a licence and as in this case indisputably the license was created before 1st February, 1973, the licensee must, by the express terms of Section 15A of the Act, continue to be a tenant of the landlord in respect of the premises in question.
In the present case, it is clear from the definition contained in Section 5(11)(b) of the Bombay Rent Act, the person remaining, in possession after determination of the lease, whether with or without the assent of the landlord continues to be the tenant. Therefore, the protection is available to the petitioner under Section 15(2) read with Section 14(1), even assuming that tenancy of respondent No. 3 was terminated on 29.4.1958 and sub-tenancy was created on 11.8.1961 pursuant to the auction sale."
26. In this view of the matter, in either of the circumstances, the plaintiff cannot get decree for possession under Section 13(1)(e) of the Bombay Rent Act. even if it is held that the trial Court was right in holding that the sub-tenancy was unlawfully created, even then the decree for possession could not have been passed against defendants. I, therefore, hold that the respondents herein are protected by the provisions of Section 15(2) and Section 14(1) of the Bombay Rent Act. The respondent Nos. 4 and 5 would be deemed to have become tenant of the plaintiff. This pronouncement is nothing but recognition of declaration of law recognised by this Court through its various pronouncements.
27. At this juncture, it will not be out of place to mention that I had occasion to consider the very same issue in the case of Shri Bharatnagar Shwetambar Murti Pujak Jain Sangh and Ors. v. Shri Hitesh Pannalal Mehta and Ors., Writ Petition No. 339 of 1986 dated 28.4.2000. In this view of the matter, I am bound by the view taken by me in the said judgment.
Point No. 2:
28. The first point having answered against the petitioner and in favour of respondent Nos. 4 and 5, it is really not necessary to go into legality and validity of the decree under execution. Assuming for the sake of argument that the decree is a legal and valid decree obtained and the same can be validly executed by initiating execution proceedings, but during the pendency of execution proceeding statute having been amended with retrospective effect the decree has become unexecutable. The decree even if legal, cannot be allowed to be executed in view of the retrospective amendment to the Bombay Rent Act. The executing Court can always take into account such change in law during the pendency of the execution proceedings so long as judgment debtor is in possession of the property which is a subject matter of decree. All questions, which can be gone into in a suit can also be gone into in the said proceedings. It is open to an obstructionist in proceedings started under Order 21 Rule 97 to raise a contention that decree being a nullity is not liable to be executed. This is so despite the fact that he cannot establish his independent right to possession. Matter can be investigated under Order 21 Rule 101, Mani Nariman v. Phiroz 1991 M.L.J. 376.
29. Apart from the above, the case of the respondents/obstructionists even otherwise stands on a higher footing. The objection filed by them under Order 21 Rule 97 of the Code of Civil Procedure were rightly adjudicated upon by the executing Court. The Apex Court in the case of Ashan Devi v. Phulwasi Devi, 2003(9) Scale 783 while interpreting Order 21 Rule 97 of the Code observed that Legislature purposely amended Order 21 to enable third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. No separate suit is required to be filed. Proceedings under Order 21 Rule 97 of the Code are required to be tried as suit. In this view of the legal possession, no fault can be found with the impugned judgment and decree passed by the lower appellate Court.
29. In the result, petition is dismissed. Rule is discharged with no order as to costs.
30. At this stage, Shri Rana, learned Counsel for the appellant prayed for stay of this judgment. Nobody is present on behalf of the respondents as such there is no opposition to this prayer. In this view of the matter, interim relief already operating in favour of the petitioner to operate for a further period of 8 weeks from today.
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