High Court · 2009

Heard Mr. AK Goswami, the learned Sr. Counsel for the petitioner. The petitioner/judgment debtor, by the present petition, has challenged the orde r dated 25-11-2008 passed by the learned Executing Court in Misc. (J) Execution Case No.8/2006 arising out of the Title Execution Case No. 14/2000 rejecting the application filed by the petitioner under Section 47 read with Section 151 of t he CPC contending that as the Court cannot pass a decree for damage in a suit fi led for eviction of the tenant under the provisions of the Assam Urban Areas Ren t Control Act, 1972 (in short, (cid:28)the Act (cid:29)) the decree passed by the learned Court below in that respect is non executable being nullity. The decree holder/opposite party instituted Title Suit No.59/1991 against the pr esent petitioner as defendant, under the provisions of the Act praying for the f ollowing reliefs:- (cid:28)13. The plaintiff prays for:- a) A decree for eviction of the defendant and for Khas possession of the premise s of Schedule ’B’ by evicting the defendant therefrom. b) A decree for Rs.750/- (Rupees seven hundred fifty) as arrear rent from May, 1 990 to September, 1990. c) A decree for Rs.4140/- (Rupees four thousand one hundred forty) only as damag e from 1-10-90 to 15-2-91 at the rate of Rupees thirty per day. d) A further decree of damage at the rate of Rupees thirty per day from 16th Feb ruary, 1991, till the defendant is finally evicted. e) A decree for interest at the rate of 11% per annum on the decreetal amount ti ll the entire amount is realized. f) A decree for cost of the suit and any other decree to which the plaintiff may be entitled. (cid:29) The learned Munsiff No.1, Dhubri vide judgment dated 30-06-1993 decreed the suit for eviction of the present petitioner from the suit premises and also deciding the issue Nos.6 and 7 in favour of the plaintiff/opposite party herein by holdi ng that he is entitled to the reliefs claimed under 13 (b), (c) and (d) as quote d above, apart from the relief claimed under (a). A decree accordingly was draw n on 06-07-1993. Against the said decree though an appeal has been preferred by the present petit ioner before the Lower Appellate Court, the same was, however, dismissed by the learned Assistant District Judge, Dhubri vide judgment and order dated 18-02-200 0 upholding the judgment and decree passed by the learned Trial Court. Being ag grieved, a revision petition was preferred before this court being CRP No.120/20 00, which has also been dismissed vide judgment and order dated 10-01-2006, agai nst which a special leave petition seeking leave to appeal has been filed by the present petitioner before the Apex Court, which has also admittedly been dismis sed refusing to grant the leave to appeal. Thus the decree passed by the learne d First Court has attained its finality, which has been put into execution in th e aforesaid execution proceeding by the decree holder. Upon receipt of the notice in the execution proceeding, the present petitioner i nitially filed an application under Section 47 of the CPC objecting the executio n of the decree on the ground that the decree holder cannot claim the amount as shown in the five different heads and is not entitled to the said sum as the jud gment passed by the Court has not directed payment of any such amount. In the s aid application, the petitioner, however, has fairly stated that the Executing C ourt cannot go beyond the decree. The said application has been dismissed by the learned Executing Court vide orde r dated 06-07-2006 on the ground that what has been prayed for in the execution proceeding by the decree holder is not beyond the decree passed by the learned C ourt below. The same was challenged before this Court in CRP No.268/2006, which has been dismissed by this Court vide order dated 06-09-2006. The petitioner again on 20-09-2006, after dismissal of the aforesaid revision pe tition on 06-09-2006, filed another application under Section 47 read with Secti on 151 of the CPC raising the same contention as was raised in the earlier appli cation under Section 47 of the CPC, which was dismissed and such order of dismis sal was upheld by this Court in the aforesaid revision petition. The petitioner thereafter, filed another application in continuation of the second application filed under Section 47 of the CPC contending that the decree holder has no right , title and interest in the suit as it has been sold to someone else and the ren t of the suit house have been fully paid during the tenancy period and as such, the execution proceeding is not maintainable and also on the ground that the dec ree is in violation of the provisions of the Act. The learned Executing Court, upon consideration of the averments made in the sai d application as well as the objections filed thereto and also upon hearing the learned counsel for the parties, by the impugned order dated 25-11-2008 has reje cted the contention of the present petitioner/judgment debtor and consequently, rejected the said application filed under Section 47 of the CPC on the ground th at the execution proceeding has been filed in terms of the decree passed and suc h decree has been drawn in terms of the judgment passed by the learned Court bel ow. It appears from the judgment passed by the learned Trial Court on 30-06-1993 tha t the suit has also been decreed as per the prayer made in paragraphs 13 (b), (c ) and (d), which have already been reproduced above. The decree was accordingly drawn in terms of the judgment passed. The said judgment and decree was unsucce ssfully challenged up to the level of the Apex Court by the present petitioner. The said judgment and decree has attained its finality. On perusal of the afore said judgment and decree, as noticed above, it is evident that the decree has be en passed in terms of the prayer made in paragraphs 13 (b), (c) and (d), apart f rom the prayer made in paragraph 13 (a) and, therefore, the contention of the pe titioner that the decree was not drawn in terms of the judgment passed, cannot b e accepted. The other ground, on which the objection to the decree has been mad e that no damage can be awarded in a suit filed under the provisions of the Act, also cannot be accepted at this stage, the petitioner having unsuccessfully cha llenged the decree passed. The other contention in the application under Section 47 of the CPC that during the continuance of the tenancy, that rent was paid, c annot also be accepted at this stage, in view of the aforesaid judgment passed b y the learned Court below and the findings recorded therein. The question of the decree holder having no right, title and interest over the property was not rai sed in the suit and such question cannot also be raised by a tenant in a suit fo r eviction under the Rent Control Act, the tenancy having been admitted and deci ded. In view of the aforesaid discussion, I am of the view that no illegality has bee n committed by the learned Executing Court in passing the impugned order dated 2 5-11-2008 requiring interference of this Court in exercise of the jurisdiction u nder Article 227 of the Constitution of India. Hence, the revision petition is dismissed. No cost.