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Onkar Nath Vs. Gaja Nand and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 1059 of 1982 and Civil Miscellaneous (Main) Appeal No. 21 of 1983
Judge
Reported in1984(7)DRJ293
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 32A
AppellantOnkar Nath
RespondentGaja Nand and anr.
Advocates: I.S. Mathur and; C.P. Wig, Advs
Cases Referred and Baghicha Singh v. Suba Singh
Excerpt:
code of civil procedure - order 21 rule 32--a decree of permanent injunction was passed against the respondent. the respondent forcibly took the possession of the premises in total disregard of the decree ;the executing court was competent to issue warrants of possession with respect to the property illegally occupied by the respondent. - - the respondent from his acts is clearly a dishonest person and is not worthy of being believed by any court......produced in court by the learned counsel for the decree-holder. i have compared this plan with the plan filed with the revision petition and i find that the two are exactly identical and accordingly i mark this plan as ex. a, which may be sent to the executing court along with a copy of this order. it is further directed that in case the executing court feels any difficulty in complying with this order and getting possession restored to the decree-holder due to the resistance by the judgment debtor and providing help to the decree-holder, the executing court will be at liberty to pass an order for detaining the judgment debtor in civil prison till the decree is complied with. consequently in view of my order in civil revision no. 1059/82. the c.m. (m) no. 21 of 1983 filed by the judgment.....
Judgment:

N.N. Gowamy, J.

(1) This order will also dispose of C.M.(M) No. 21 oF 1983. Both these petitions have been filed against the order dated 2-7-1982 passed by the executing court whereby the application of the petitioner under Order 21 Rule 32 of the Code of Civil Procedure was allowed to the extent that attachment warrants for attaching the property of the Judgment debtor were issued for compelling them to comply with the orders of the Court dated 28-5-1983. In civil revision by the decree-holder the grievance is that besides the attachment warrants for attaching the property the executing court should have also issued order for detaining the judgment debtor in civil prison and should further have issued the warrants for recovery of possession of the room illegally occupied by the respondent-judgment debtor. As against that the petition filed by the judgment debtor is against' the order regarding the attachment warrants of the property.

(2) The facts, which give rise to both these petitions, are that Munna Lal father of respondent No. I was a night watchman of premises No. 1194 Maliwar, Delhi and in that capacity was allowed to use a kothri on second floor shown in red in the plan attach to the plaint. In 1962 the said Munna Lal died and on humanitarian grounds his wife Pushpa Devi was allowed to stay in the said Kothri. In 1964 Gaja Nand son of the said Pushpa Devi and Munna Lal along with his wife came from the village and started staying with their mother. On 15-5-1969, the petitioner served a notice on Pushpa Devi terminating her license. Pushpa Devi died on 19-7-1969. The petitioner thereafter on 4-8-1969 filed suit for possession of the said Kothri against respondents I and 2. Along with the prayer for possession, a prayer was made for injunction restraining respondents I and 2 from taking possession of any other portion of the property. The petitioner also claimed mesne profits for use and occupation at the rate of Rs, 15.00 per month. The said suit was decreed on 28-5-1973. All the three prayers were granted. Respondents I and 2 filed an appeal before the Additional District Judge, Delhi which was dismissed on 21-3-74 and the second appeal was dismissed by this Court on 22-7-1974. On 29-3-1974 the petitioner-decree-holder made an application for execution of the decree for possession. Respondents I and 2 filed objections. It was stated in the objection petition that the decree passed against them was without jurisdiction as Munna Lal was a tenant in the property and thereforee civil court had no jurisdiction to entertain the suit. The objections were dismissed on 8-4-1975. By order dated 1-8-1975 the court granted police aid for delivering possession as the judgment debtor had refused to deliver possession and there was an apprehension of breach of peace. On 7-10-1975 respondent No. I filed a suit that he was a tenant of two rooms at Rs. 25.00 per month. He further stated that the petitioner wanted to increase the rent and wanted to take possession and prayed for the grant of injunction restraining the petitioner from dispossessing him. In December 1975, it is alleged that respondents I and - forcibly occupied one other room on second floor marked 'A' in the plan.

(3) The petitioner filed an application under Order 21 Rule 32 Civil Procedure Code . on 4-2-1976 for attachment of the property of respondents I and 2 and their detention in civil prison on the ground that respondents I and 2 in violation of injunction order had occupied another room on second floor, in the said application it was also prayed that such further relief as the court deem fit and proper may be granted.. The application was contested by the respondents on the ground that the premises had been let out to them at a monthly rent of Rs. 25!-. The said objections filed by the respondents as also the suit was dismissed by the leari.ed trial Judge. The appeal against the dismissal of the suit was preferred which was allowed on terms that tie respondent will be given another opportunity to lead evidence subject to payment of costs. Accordingly the suit went back but finally it was dismissed for default of appearance by the learned trial Judge on 28-7-1978. In the objections filed by the respondents it was held that the rent receipts as also the notice produced by the respondents were forged and the objections were, thereforee, dismissed. Consequently the executing court directed the attachment of the property after recording the finding that the respondents had deliberately disobeyed the decree for injunction.

(4) It is against the aforesaid order of attachment of property that both these petitions were filed, one by the decree-holder and the other by the judgment debtor as indicated by me above. The contention of the learned counsel for the petitioner-decree-holder is that in case of such an flagrant disobedience of the injunction granted by a coJit the judgment debtor should have been sent to civil prison and he should have been granted a- warrant for possession also. At one point of time, Mr. Wig, the learned counsel, for the respondent-judgment debtor disputed the premises which we i.e. the subject matter of the suit and submitted that the judgment debtors were in possession of the portion Marked 'A' in the plan at the time of the suit itself. An opportunity was given by me to Mr. Wig to look into the file and see from the plan as to what exact portion was in dispute in suit. After looking into the plan and the plant Mr. Wig has frankly conceded that the portion in dispute was only the one marked in red measuring 85'x4 and described as store. It is also an admitted fact that the respondents never pleaded in the suit that they were in occupation of any additional accommodation. In the circumstances, the executing court is entirely right in coming to the conclusion that the property which has been mentioned by the petitioner-decree- holder has been occupied by the respondents in flagrant disobedience of the decree for injunction in favor of the petitioner. If such a disobedience o the decrees is permitted, the rule of law, whatever is left, will also disappear. It has further been stated on affidavit in this petition that during the pendency of. this revision petition by the decree-holder, the respondents have taken forcible possession of another room shown as 'B' in the plan. This fact has been disputed by the respondents, but I do not find any reason to disagree with the petitioner because the petitioner cannot be expected to make a statement on affidavit against his own interest. The respondent from his acts is clearly a dishonest person and is not worthy of being believed by any court. In these circumstances, there-is no reason why the petitioner should not be granted warrants for possession of the property which has been forcibly occupied by the respondents and in violation of the decree for injunction. This view finds support from various decisions and it would be sufficient to refer to Ram Charan Shakdarv.JaganNaih, : AIR1978Cal193 and Baghicha Singh v. Suba Singh, .

(5) For the reasons recorded above, civil revision No. 1059/82 filed by the decree-holder is allowed and the executing court is directed to forthwith issue warrants for possession of the property shown 'A' and 'B' in the plan annexed to this petition. A true copy of this plan has been produced in Court by the learned counsel for the decree-holder. I have compared this plan with the plan filed with the revision petition and I find that the two are exactly identical and accordingly I mark this plan as Ex. A, which may be sent to the executing court along with a copy of this order. It is further directed that in case the executing court feels any difficulty in complying with this order and getting possession restored to the decree-holder due to the resistance by the judgment debtor and providing help to the decree-holder, the executing court will be at liberty to pass an order for detaining the judgment debtor in civil prison till the decree is complied with. Consequently in view of my order in civil revision No. 1059/82. the C.M. (M) No. 21 of 1983 filed by the judgment debtor has necessarily to be dismissed. Ordered accordingly. Considering the financial position of the judgment debtor, I leave the parties to bear their own costs. Lower court's record be sent back forthwith. 23. The result thereforee is that the appeal succeeds and is allowed. The judgment and order of the High Court and the order of the Rent Control Tribunal and that of the Rent Controller are set aside and the matter is remanded back to the Rent Controller for a decision afresh, with advertence to the observations made above.


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