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Kashiram Vs. Hansraj - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 283 of 1980
Judge
Reported inAIR1983Raj145; 1982()WLN590
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 22 and 26; Code of Civil Procedure (CPC) , 1908 - Sections 47
AppellantKashiram
RespondentHansraj
Appellant Advocate Ramrakh Vyas, Adv.
Respondent Advocate Rajendra Mehta, Adv.
DispositionPetition dismissed
Excerpt:
rajasthan premises (control of rent & eviction) act, 1950 - section 26 and civil procedure code--section 47--objection relating to execution of eviction decree--held, objection relates to section 26 and would lie under section 47;the petitioner's case is that the rajasthan premises (control of rent & eviction) act, 1950 (for short 'the act') was enforced in sadul shahar on january 20, 1977 so an objection based on section 26 of the act was raised, which was rejected by the executing court by its order dated april 12, 1978.;the objection based on section 26 of the act would lie and would be heard only under section 47 of the code of civil procedure;revision dismissed - .....lie under section 26 of the act. the objection based on section 26 of the act would lie and would be heard only under section 47 of the civil p.c.7. in this view of the matter, i agree with the view of the learned additional district judge, no. 2, hanumangarh that no appeal is maintainable. the remedy of the petitioner was only to approach this court against the order of the executing court by way of revision.8. thus, this revision petition has no force so it is hereby dismissed with no order as to costs.
Judgment:

M.C. Jain, J.

1. This revision petition is directed against the order of the learned Additional District Judge, No. 2, Hanumangarh dated April 5, 1980, whereby, the petitioner's appeal was dismissed on the ground that the appeal is not maintainable.

2. A few facts may be noticed, which have given rise to the present revision petition.

3. A decree for ejectment was passed on April 16, 1973 by the learned Munsif, Hanumangarh in favour of the respondent-decree-holder Hansraj and against the petitioner-judgment-debtor Shri Kashiram and appeal was preferred against that decree in which the, parties entered into compromise on Sept. 20, 1973 and it was agreed that the petitioner shall vacate the shop by June 30, 1976.

4. According to the petitioner, he had already handed-over the possession of the shop to the decree-holder but the decree-holder has still maintained the execution.

4-A. The patitioner's case is that the Rajasthan Premises (Control of Rent and Eviction) Act. 1950 (for short 'the Act1)' was enforced in Sadul Shahar on Jan. 20, 1977 so an objection based on Section 26 of the Act was raised, which was rejected by the Executing Court by its order dated April 12, 1978.

5. The petitioner went in appeal but the appeal was held to be not maintainable as the petitioner's objection was relating to executability of the decree so it fell under Section 47 of the Civil P. C.

6. Having heard the learned counsel for the parties, I am f opinion that the first appellate court was right in treating the objection under Section 47 of the Civil P.C. All objections relating to the executability of the decree can be raised before the executing court under Section 47 of the Civil P.C. Objection based on Section 26 of the Act would legitimately fall: only under Section 47 of the Civil P.C. The Act does not make any provision relating to execution. For execution of the decree, the provisions of Civil P.C. will apply and so objections relating to execution would attract the provision of Section 47 of the Civil P.C. It cannot, therefore, be said that the objection is maintainable Or would lie under Section 26 of the Act. The objection based on Section 26 of the Act would lie and would be heard only under Section 47 of the Civil P.C.

7. In this view of the matter, I agree with the view of the learned Additional District Judge, No. 2, Hanumangarh that no appeal is maintainable. The remedy of the petitioner was only to approach this Court against the order of the executing Court by way of revision.

8. Thus, this revision petition has no force so it is hereby dismissed with no order as to costs.


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