Execution Case No. 1 of 2007 · High Court · 2012

3. One Madan Lal Sarma filed TS No.61 of 1994 in the Court of Assistant Di strict Judge No.1, Kamrup, praying inter alia for ejectment of the principal def endants from the suit premises described in schedule B to the plaint and also fo r delivery of khas possession of the suit premises together with recovery of a n amount of Rs 32,400/- from the principal defendants as arrear rent of the suit premises. The petitioner was the defendant no.3 in the above suit. The petition er no.3, had filed written statement in the above suit stating therein that the petitioner-defendant no.3 attorned Madan Lal Sharma, as the landlord of the suit premises, after coming to know that the plaintiff had purchased the suit premis es from erstwhile owner of the suit premises. The petitioner-defendant no.3 in h is written statement claimed himself to be statutory tenant and protected u/s 5( 2) of the Assam Urban Areas Rent Control Act, 1972.

4. On conclusion of the hearings, the learned Civil Judge, vide judgment an d order dated 29th march, 2004, decreed the suit and directed ejectment of the p etitioner-defendant no.3 from the suit premises and for recovery of alleged arre ar house rent amounting to Rs 32,400/- from the petitioner-defendant no.3 as per the decree passed in the above suit. Thereafter, one Nareswar Das, as the const ituted attorney of the legal heirs of the plaintiff, namely Madan Lal Sharma fil ed Title Execution Case No.1 of 2007 in the Court of Civil Judge(Sr Division) No .3, for execution of the decree passed in the aforesaid suit. It has been contended on behalf of the petitioner that the constituted a 5. ttorney Sri Nareswar Das did not file any power of attorney allegedly executed i n his favour by the legal heirs of the deceased plaintiff/decree-holder in the C ourt at the time of filing the application of Title Execution Case No.1 of 2007. It has further been submitted on behalf of the petitioner that no succession ce rtificate in respect of the legal heirs of the deceased plaintiff/decree-holder was filed in the aforesaid title execution case in respect of the decree relatin g to the payment of rent. Learned counsel further submitted that since the petit ioner attorned the deceased plaintiff/decree-holder, namely, Madan Lal Sharma as the landlord of the suit premises, there is no bona fide reason, for initiating the title execution case no.1 of 2007 after a lapse of so many years.

6. The petitioner, accordingly, filed an application under Section 47 CPC for dismissal of the aforesaid title execution case, claiming it to be not axio matically maintainable. The opposite parties did not file any objection to the p rayer made in the application filed under Section 47 CPC. The petitioner-defenda nt no.3 examined himself as PW1 in the above Misc (J) Case No.114 of 2010, he wa s duly cross-examined on behalf of the respondent.

7. Learned counsel for the petitioner pointed out that since Nareswar Das , the constituted attorney of the legal heirs of the plaintiff decree holder di d not file power of attorney executed in his favour by the legal heirs of the de ceased plaintiff/decree-holder, the execution application is not maintainable in law. The learned court below, while discussing the issues raised by the pe titioner the application under section 47 of the C.P.C., has observed as follo ws: (cid:28)The said decree was upheld by the Ld Appellate Court in T.A. No.7/04 an d the Hon’ble High Court in C.R.P. No.185/06 as discussed above. Although the petitioner/defendant No.3 claimed that the dispute between the parties were later on compromised by a joint application dated 26/6/96 filed in T.S. No.146/96 in the Court of the ld Munsiff No.4, Guwahati and compromised the suit acknowledging the defendant No.3/petitioner and others as his tenants of the suit premises and restored electricity connection in the suit premises in possession of the defendant No.3/petitioner and others, but from the applicatio n filed in T.S. No.146/96 which is proved as Ext-5 by the present petitioner, it reveals that the said application was filed for restoration of electricity conn ection in the suit premises only, not for other mattes. So, T.S. No.146/96 which was compromised on 26/6/96 between the parties was a different matter and not f or acknowledging fresh tenancy of the petitioner/defendant No.3 and others with the plaintiff as claimed by the petitioner. Moreover, considering all the evidence and documents including challans in respect of depositing rent, issue No.2 was already decided holding that the d efendants including the present petitioner/defendant No.3 are defaulters and lia ble to be ejected which was affirmed by the Ld Appellate Court as well as by the Hon’ble High Court. Though the Ld Counsel on behalf of the petitioner urged that during cros s of PW 1, it was brought on record that as the PW1 Nayan Vrijlal Shah was not a party of T.S. No.61/94, hence, decree passed in T.S. No.61/94 is not binding up on the petitioner but it reveals from record that the defendant No.3 is the firm namely Modern Machinery Spares and the present petitioner Sri Nayan Vrijlal Sha h on behalf of the defendant nNo.3 filed petition since pendency of T.S. No.61/9 4. According to PW 1 also, be became the partner of defendant no.3 in the year 1 998 and other partners retired from the defendant No.3 firm. Further, the ld Counsel for the petitioner vehemently submitted in the w ritten statement that as the deed of power of attorney allegedly executed by the legal heirs of Madanlal Sarma in favour of Nareswar Das who filed the execution proceeding and as the legal heirs of Madanlal Sarma did ot file and produce any succession certificate for initiation/continuation of the execution case and fo r realizing the excretal amount, hence, the execution case is not maintainable b ut those two objections neither raised in the execution proceeding nor in the pe tition of this instant Misc Case, whereas the execution proceeding was filed in the year 2007 and question of succession certificate for realising the excretal amount by the legal heirs of the decree-holder is a different matter. Moreover, at the time of argument, the Ld Counsel for the decree-holder produced the power of attorney dated 30/11/06 executed by the heirs of the decre e-holder in favour of Nareswar Das and one another and deed of General Power of Attorney dated 13/6/09 (cid:29). Referring to the provision of Order 3 Rule 1,2 & 6, of C.P.C. Mr. Dhar, 8. learned counsel for the petitioner, submitted that the appointment of an authori zed attorney has to be in writing and appointments are required to be filed in the Court before initiating the process for action pleaded . Consequently, w hen a copy of such document is filed in the court of law for the satisfaction of the court, regarding appointment of an attorney, in normal circumstances, the c ontesting party to the litigation requires he would be entitled to a copy of su ch documents. Learned counsel for the petitioner submitted that the copy of th e power of attorney, on behalf of the respondents , was not made available b y the Court record for perusal of the petitioner -judgement debtor, to enable hi m to submit his objection, if any .

9. Learned counsel for the petitioner pointed out that the heirs of the de ceased decree holder are legally required to produce succession certificate in t heir favour to receive the money decree of Rs.32,400, as recovery of rent . Acco rding to the learned counsel for the petitioner, in order to avoid the reqiremen t of furnishing succession certificate for satisfaction of the money decree ,th e decree was put on execution through the attorney . Learned counsel pointed o ut that the decree in a title suit is not divisible since the decree passed by t he trial Court and affirmed by the appellate Court is a decree for recovery of p ossession, as well as for recovery of arrear rent. The decree is not divisible.

10. Learned counsel for the petitioner further pointed out that a decree passed by a civil Court for ejectment of tenant and recovery of rent is not div isible. If the money decree is not executable, for want of succession certificat e the decree for ejectment would be un-executable. According to the learned co unsel for the petitioner, since the decree for recovery of arrear rent is not ex ecutable, the composite decree for ejectment and recovery of rent is not liable to be put into execution by the decree-holder. In reply to the above contention, Mr Bhati, learned counsel for th 11. e respondent, vehemently submitted that case for execution of the decree was fi led under Order 21 Rule 11(2) of CPC, by the power of attorney holder on behalf of the legal representatives, therefore, there is no legal requirement for subst itution of legal representatives of the deceased decree-holder. Furthermore, the judgment-debtor is not entitled to be served with the copy of the power of atto rney executed by the legal heirs of the decree-holder and the decree passed by t he court of law will be binding on the judgment-debtor.

12. Mr Bhati, learned counsel for the decree-holder further pointed out that decree can be executed in part in terms of the decision of the Bombay High Cour t, reported in AIR 1954 Bombay 273 (Motilal ShivnarayanSantaram Bala and Ors). Learned counsel further submitted that if the decree in respect of the arrear re nt is not executable, the decree-holder is ready to forego the part of the money decree and get the execution of the rest of the decree in their favour.

13. The moot question projected by the petitioner is that despit e asking for a copy of the power of attorney executed by the legal representativ es of the decree holder, before proceeding with the execution case through the a ttorney of the legal representatives of the decree holder, it was not made avail able to the petitioner. In my opinion when a copy of document is filed in the co urt of law for the satisfaction of the court, in order to fulfill any legal requ irement, if the contesting party to the litigation demand that he or she be fur nished a copy of such documents , the Court is duty bound to ensure supply of such copy , if there is no legal bar in doing so. Any deviation by the Court to such practice of furnishing copy of such documents to the litigating parties has to be with reasons. Not permitting perusal of the document, filed in the Co urt, without valid reasons, would amount to violation of natural justice, and su ch practice cannot be encouraged .

14. Considering the above situation, in my opinion learned court below ough t to have given opportunity to the petitioner to peruse the power of attorney fi led on behalf of the legal representatives of the decree holder before passing t he impugned order.

15. Therefore , without lengthening the discussion any further and without discussing any other points so raised by the learned counsel for the parties , t he impugned order aforesaid dated 21/02/2012 is set aside and the matter is r emitted to the learned court below , with a direction to furnish a copy of the p ower of attorney executed by the legal representatives of the decree holders and to enable the petitioner to submit his objections, if any, within 15 days from the date of appearance. The learned court below shall dispose of the Misc. appli cation afresh, after giving adequate opportunity of being heard to both the part ies in accordance with law. Parties are at liberty to agitate all such relevant points before the learned court below .

16. For the above reasons, other issues raised by the learned counsel for t he petitioner as well as the respondents and the decisions cited in support of their contentions are not taken up for discussion in this proceedings . Both the parties are directed to appear before the learned Court below on 4th of Septemb er 2012.

17. Send back the lower Court records with a copy of this order immediately .