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Kashinath Vs. Bal Swarup and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Nos. 418 and 419 of 1965
Judge
Reported in1968WLN53
AppellantKashinath
RespondentBal Swarup and ors.
DispositionRevision dismissed
Cases ReferredCivil P.C. Smt. Sarla Bala Dassi v. Smt. Nirmala Sundari Dassi and Anr.
Excerpt:
.....the code e.g. sections ii and 146. a person sought to be evicted as a subtenant and claiming to be tenant of the decree--holder independently of the judgment--debtor cannot be properly considered as representative.;(b) civil procedure code - section 146--when attracted.;the petitioner alleging that they are subtenants of the judgment-debtor but are independent tenants of the decree-holder and seeking an adjudication of this claim, cannot be said to claim under the judgment debtors and therefore they cannot be permitted to appeal to seek such plea under section 146 c.p.c.;(c) civil procedure code - section 47--objection that decree was collusive and fraudulent--held, objection not related to satisfaction, execution or discharge of decree. - section 2(k), 2(1), 7 & 40 & juvenile justice..........of the expression 'representative' a person sought to be evicted as a sub-tenant and claiming to tenant of the decree holder independently of the judgment-debtor cannot be properly considered as representative. a case in point is one reported in chetramohan manimohan and ors. v. parbaty nath dutta and ors. : air1955cal295 . in that case a bench of the calcutta high court held that sub-tenants's objection that he acquired a statutory right of tenant and is not liable to ejectment, could not be decided under section 47 as the right claimed by him was independent of the tenant and not through him and referred to the following observations of an earlier decision of the bench of that court:the right claimed by a sub-tenant was independent of the right of the tenant and for that reason a.....
Judgment:

L.N. Chhangani, J.

1. These two revision applications arise out of the same Civil execution case No. 122 of 1964. The facts and the points involved in the two cases are similar and, therefore, they will be disposed of by one order.

2. The relevant facts are these:

The opposite party No. 1 Bal Swaroop son of Bishan Swaroop filed a suit for rent and ejectment against Jankilal and Baluram opposite parties Nos. 2 & 3 in respect of property bearing A.M.C. No, VI/94 and obtained a decree on 15-4-1964 for ejectment of Baluram and Jankilal from the suit premises on the basis of a compromise. It may be mentioned here that the suit property initially belonged to Shri Bhag Chand Soni from whom Baluram and Jankilal had obtained a lease. Bal Swaroop subsequently purchased the property and brought the suit as transferee of the original landlord. The decreeholder applied for execution of the decree and wanted delivery of possession of the suit property. Chandra Bhan and Kailash Nath Bhargava, who are the petitioners in the two revision applications and who are in separate actual possession of some portion of the property, offered resistance to the delivery of the possession to the decree-holder. The decree-holder then submitted an application under Order 21 Rule 97, Civil P.C. against the petitioners complaining of resistance and obstruction in delivery of possession. The decree-holder alleged that Kailash Nath Bhargava and Chandra Bhan Bhargava were sub-tenants of the judgment-debtors and were bound by the decree. The reply of the petitioners was that they were in possession of the premises as direct tenants from Shri Bhag Chand Soni and consequently, of the decree-holder and could not be ejected in execution of the decree against the judgment-debtors. It was alleged that the judgment--debtors were simply collectors of rent from them on behalf of the landlord. It was also alleged that the decree against the judgment-debtors was collusive and tainted with fraud. The Execution Court, after enquiry, held that the petitioners were the sub-tenants of the decree-holder and that they were bound by the decree against the judgment-debtors rind that they hid no just cause to resist or obstruct the delivery of possession. The Court, therefore, ordered that a warrant for possession be issued and a note be made in the warrant that the said persons are bound by the decree pissed against Bakirdm and Jankilal and so, they be dispossessed and the posssession of the premises in their occupation be delivered to the decree-holder. Aggrieved by this order, the petitioners filed separate appeals. These appeals were heard by the Senior Civil Judge, Ajmer. A preliminary objection as to the maintainability of the appeals was taken on behalf of the respondents on the ground that the orders were not appealable. The preliminary objection prevailed with the appellate court, and the appeals were dismissed, as not maintainable. The petitioners have filed the present revision applications.

3. I have heard the counsel for the petitioners and the opposite parties.

4. The counsel for the petitioners has contended, in the first instance, that the execution Court having held that the petitioners were the sub-tenants of Jankilal and Balurana and were bound by the decree, they must be treated as the representatives of the judgment-debtors or persons claiming possession through them and, therefore, their objections fell within the purview of Section 47 of the Code of Civil Procedure and orders disposing of those objections were appealable as decrees. The learned Counsel relied upon M.S.M. Meyyappa Chetty and Anr. AIR 1920 Mad. 979, Jairam Jadowji and Ors. v. Norwoji Jamshedji Plumber AIR 1922 Bom. 449 and Guduri Anjayya and Anr. v. Devabhaktuni Gundaryudu and Ors. AIR 1943 Mad. 381. A perusal of these cases will, however, show that the petitioner do not derive any assistance from these cases. In Mayyappa v. Chidambaram AIR 1920 Mad. 979 the decree-holder was obstructed in obtaining possession by a person who was a party to the suit A question relating to removal of an obstruction by a party to the suit was held to be one falling under Section 47, Civil PC. In the present case, the petitioners were not parties to the suit even though they have been held to be bound by the decree passed against the judgment-debtors they having been held to be sub-tenants of the judgment-debtors. In Jairam v. Nowroji AIR 1922 Bom. 449 all that the court held was that a sub-tenant cannot claim to be in possession of property on his own account within the meaning of Order 21 Rule 99, and if his immediate landlord is the tenant and judgmentdebtor he cannot be in possession on account of some person other than the judgment debtor & in the execution plaintiff is entitled to get possession of the premises from the sub-tenants The question whether a sub-tenant who is liable to be ejected in execution of a decree against a tenant can agitate controversy under Section 47.Civil P.C. that he is not a sub-tenant but is a direct tenant on behalf of the decree-holder, did not arise and was not considered in that case. In Guduri Anjayya and Anr. v. Devabhaktuni Gundarayadu and Ors. AIR 1943 Mad. 381 the execution court held a person to be the representative of a party to the suit or of one who was sufficiently represented by a party to the suit and passed an order against him which order could not otherwise have been made against him as he was a stranger to the decree. It was in these circumstances, that the question was treated as one falling under Section 47 and appealable. The principle of this case cannot be extended to the case of persons who are sought to be evicted as sub-tenants and who deny their status as subtenants and claim to be tenants directly from the decree-holders. A representative within the language of Section 47 Civil P.C. as pointed out by Patanjalr Sastri J. as he was then, in Thondam Annamalai Mudali v. Tirtuttani Ramaswami Mudali and Ors. AIR 1941 Mad. 161, should be understood as merely referring to the one who stands in the shoes of another to use an expression familiar in legal parlance and as meaning more or less the same thing as the expression 'claiming under' used in other section of the Code e.g., Sections 11 and 146. In this view of the expression 'representative' a person sought to be evicted as a sub-tenant and claiming to tenant of the decree holder independently of the judgment-debtor cannot be properly considered as representative. A case in point is one reported in Chetramohan Manimohan and Ors. v. Parbaty Nath Dutta and Ors. : AIR1955Cal295 . In that case a Bench of the Calcutta High Court held that sub-tenants's objection that he acquired a statutory right of tenant and is not liable to ejectment, could not be decided under Section 47 as the right claimed by him was independent of the tenant and not through him and referred to the following observations of an earlier decision of the Bench of that Court:

The right claimed by a sub-tenant was independent of the right of the tenant and for that reason a sub-tenant cannot be said to be a party to the judgment pronounced against the tenant and he is not a representative of the tenant.

The right claimed by a sub-tenant cannot be enquired into or ascertained in a proceeding under Section 47, Civil P.C.

The observations in Dwipal Chandra Bardhan v. Jiban Debi and Ors. AIR 1931 Cal. 574 and Bhagwandas v. Sampatram 1954 R.L.W. 34 also support the above contention.

5. Next, it was contended that the petitioners are entitled to appeal having regard to the provisions contained in Section 146. Civil P.C. Smt. Sarla Bala Dassi v. Smt. Nirmala Sundari Dassi and Anr. : [1958]1SCR1287 and a few other cases were relied upon in this connection. A mere glance at Section 146, Civil P.C. shows that it cannot be attracted in the present case. The petitioners alleging that they are not the sub-tenants of the judgment-debtors but are independent tenants of the decree-holder and seeking an adjudication of this claim, cannot be said to claim under the judgment-debtors and, therefore, they cannot be permitted to appeal to seek such a relief under Section 146, Civil P.C. The cases relied upon by the petitioners were decided on different facts and under different circumstances and the petitioner cannot derive any assistance from them.

Lastly, it was urged that the decree against the judgment-debtors was merely declaratory and incapable of execution and that this question can only be decided under Section 47. It is true that any such objection by the judgment-debtors could be decided only under Section 47, Civil P.C. but it is hardly open to the petitioners claiming adversely to the judgment-debtors to secure a decision of their objections under Section 47 Civil P.C. by taking this additional ground. It may also be mentioned that the petitioners have also taken a plea in their objections that the decree against the judgment-debtors was collusive and fraudulent. Such a question cannot be treated as a question relating to the satisfaction, execution or discharge of the decree.

6. On a careful consideration of the facts and the circumstances of the case and the relevant law on the subject, I have no hesitation in coming to the conclusion that the view taken by the lower appellate court is correct. There is no case for interference. The revisions fail and are hereby dismissed with costs.


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