# (Matter under Article 227) Musheer Alam v. Ramesh & Ors

- **Citation:** (2015) 3 ILRA 1094
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-15
- **Case number:** C.M.W.P. No. 5224 of 2015
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/matter-under-article-227-musheer-alam-v-ramesh-ors-43362
- **Pages:** 3

## Headnote

C.P.C. Section-47-Execution of Decree-suit
for
declaration
of
entitlement
of
possession-judgment debts objected-being
declaratory decree-can not be executedjudgment
debtor-being
tenant
-notice
validity terminated-concurrent finding not
entitle to remain in possession-execution
court rightly rejected-petition dismissed.
Held: Para-11
The decision cited, would not apply to
the facts of the instant case, which as
noted above, are clearly distinguishable.
The specious argument made by the
learned counsel for the petitioner is,
thus, not acceptable. The petition lacks
merit and is dismissed.
Case Law discussed:
2013 All. C.J. 739

## Text

1094
 INDIAN LAW REPORTS ALLAHABAD SERIES
court so as to warrant interference in
exercise of supervisory power under
Article 227 of the Constitution.
18. The petition lacks merit and is
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2015
BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.
C.M.W.P. No. 5224 of 2015
(Matter under Article 227)
Musheer Alam
 ...Petitioner
Versus
Ramesh & Ors.
...Respondents
Counsel for the Petitioner:
Sri R.P. Srivastava, Sri Rakesh Pande
Counsel for the Respondents:
Jokhan Prasad
C.P.C. Section-47-Execution of Decree-suit
for
declaration
of
entitlement
of
possession-judgment debts objected-being
declaratory decree-can not be executedjudgment
debtor-being
tenant
-notice
validity terminated-concurrent finding not
entitle to remain in possession-execution
court rightly rejected-petition dismissed.
Held: Para-11
The decision cited, would not apply to
the facts of the instant case, which as
noted above, are clearly distinguishable.
The specious argument made by the
learned counsel for the petitioner is,
thus, not acceptable. The petition lacks
merit and is dismissed.
Case Law discussed:
2013 All. C.J. 739
(Delivered by Hon'ble Manoj Kumar
Gupta, J.)
1. The petitioner, who is a judgment
debtor in Original Suit No.21 of 1985,
preferred objections under Section 47
C.P.C. against execution of the decree,
inter alia, on the ground that the decree
passed by the trial court is declaratory in
nature and is incapable of being executed.
2. The objection filed by the
petitioner was rejected by the executing
court by an order dated 8.4.2015 and the
revision filed against the said order has
also been dismissed by order dated
31.8.2015.
These
orders
are
under
challenge in the instant petition.
3. The only submission made by
learned counsel for the petitioner is that
the decree passed in the suit is a
declaratory decree, thus incapable of
being executed by delivering actual
physical possession to the plaintiffs as
sought for in the execution proceedings.
4.
The suit in question was instituted
by the plaintiff-respondents for grant of a
decree of possession in respect of House
No.719, Ward No.6, Mohalla Malitola,
Gandhi Nagar, Basti. Arrears of rent to the
extent of Rs.1800 for the period September,
1983 to February, 1984 and mesne profits
and damages were also claimed. According
to the plaint assertions, the petitioner, who is
defendant therein, was tenant of the demised
premises on a rent of Rs.300 per month, on
behalf of the plaintiff-respondents. The
provisions of U.P. Act No.13 of 1972 are not
applicable, as the demised premises is a
construction of the year 1980 and 10 years
have not passed since the date of its
construction. The tenancy of the petitioner
was allegedly terminated by a notice dated
24.1.1984 but when he failed to vacate
within a period of one month, the suit in
question
was
instituted.
3 All]
Musheer Alam Vs. Ramesh & Ors.
1095
5. The trial court framed several issues
and issue no.6 is in regard to the relief to be
granted to the plaintiff. While deciding the
said issue, the trial court held that since
provisions of U.P. Act No.13 of 1972 are not
applicable and the tenancy of the petitioner
has
been
lawfully
terminated
and
consequently, the plaintiff is entitled to
possession and decree for arrears of rent and
damages. The operative part of the decree
passed by the trial court is to the following
effect:-
oknh dk okn lO;; bl izdkj fMdzh fd;k
tkrk gS fd og fookfnr edku 719 tks okn i= ds
uD'kk utjh esa lhMh bZ,Q ls fn[kk;h x;h gS ij
DCtk n[ky izkIr djus dk vf/kdkjh gS vkSj og
izfroknh ls flrEcj lu~ 1983 ls Qjojh lu~ 1984
rd dk fdjk;k eq0 1800@& #i;k izkIr djus dk
vf/kdkjh gS rFkk oknh izfroknh ls ekpZ 1984 ls
n[ky ;kch rd dsoy 300@& izfrekg dh nj ls
gh fdjk;k ikus dk vf/kdkjh gSA
6. It seems that the decree passed by
the trial court was subjected to challenge in
appeal. The appellate court framed several
points for determination and point no.8
framed by it was as regards the relief to
which the plaintiff was entitled to. While
deciding the said issue, the appellate court
again held that the plaintiff is entitled to
possession of the demised premises and
consequently, dismissed the appeal.
7. The executing court as well as the
revisional court, while interpreting the
decree passed in the suit, have held that
the decree is, in pith and substance, a
decree for possession and the plaintiff is
entitled to execute the decree by evicting
the petitioner.
8. Learned counsel for the petitioner
in support of his contention has placed
reliance on a judgment of this Court in the
case of Roman Catholic Diocese of Agra
Ltd. Vs. Rajendra Singh and others1. In that
case, the Rent Control and Eviction Officer
(for short RCEO), in proceedings held
under Section 29-A (5) of U.P. Act No.13
of 1972, had determined the enhanced rent
payable for the demised land by the
petitioner-tenant therein. On the basis of the
determination so made, the RCEO issued a
recovery certificate for realisation of
enhanced rent. It was subjected to challenge
in writ petition and therein, the Court held
that the proceedings under Section 29-A (5),
are declaratory in nature and on the basis of
an order passed therein, the RCEO was not
authorised to issue a recovery certificate.
9.
Concededly, the suit instituted by
the plaintiff-respondent was for grant of a
decree of possession against the petitionertenant, as his tenancy was duly terminated
and for recovery of arrears of rent and mesne
profits. The trial court as well as the appellate
court, while deciding the suit, have
categorically held that the tenancy of the
petitioner was lawfully terminated and he
having failed to vacate within the statutory
period, is liable to be evicted. Thus, from a
perusal of the findings rendered in the body
of the judgment of the trial court, there is no
iota of doubt that the decree which the trial
court intended to pass, was a decree of
possession, as prayed for in the plaint.
10.
Under Section 2 (2) 'decree'
means the formal expression of adjudication
which, so far as regards the court expressing
it, conclusively determines the right of the
parties with regard to all or any of the
matters in controversy in the suit. Thus, in
the opinion of the Court, in case there is any
confusion in the operative part of the
judgment, the same is to be interpreted by
referring to the adjudication made in the
judgment. A perusal of the judgment, as
noted above, clearly reveals that the plaintiff
1096
 INDIAN LAW REPORTS ALLAHABAD SERIES
was held entitled to eject the tenant, as the
tenancy of the petitioner was lawfully
terminated. In such view of the matter, this
Court does not find any illegality in the
interpretation regarding the scope and
extent of the decree made by the executing
court and the revisional court.
11.
The decision cited, would not
apply to the facts of the instant case, which
as noted above, are clearly distinguishable.
The specious argument made by the learned
counsel for the petitioner is, thus, not
acceptable. The petition lacks merit and is
dismissed.
12. In the end, learned counsel for
the petitioner prayed for reasonable time
being granted to vacate the demised
premises to which Sri Jokhan Prasad,
learned counsel appearing on behalf of the
decree holder has no objection.
13.
Accordingly, with consent of
parties, it is further provided that the
petitioner shall be permitted to remain in
possession of the demised premises until
31.12.2015,
provided
the
petitioner
furnishes an undertaking in form of an
affidavit before the executing court,
within three weeks from today, that he
will hand over peaceful vacant possession
of the demised premises to the decree
holder, without any let or hindrance on or
before 31.12.2015. Within the aforesaid
period, the petitioner shall also deposit the
entire arrears of rent and damages, as
decreed by the trial court. In case of
default in compliance of any of these
conditions, the decree shall become
executable forthwith.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.09.2015
BEFORE
THE HON'BLE RITU RAJ AWASTHI, J.
Misc. Single No. 5377 of 2015
Darshan Singh & Ors.
 ...Petitioner
Versus
Addl. Commissioner & Ors. ..Respondents
Counsel for the Petitioner:
Anil Kumar Mishra
Counsel for the Respondents:
C.S.C., Yogendra Nath Yadav
(A)
U.P.Z.A
&
L.R.
Act-Section
341Applicability of provisions of Civil Procedure
code-partition
suit-whether
interim
injunction can be granted?-held-'yes' court
empowered either to grant or refuse
temporary injunction.
Held: Para-18
As such, I am of the considered view that
in the proceedings under Section 176 of
U.P.Z.A. & L.R. Act the Court concerned is
fully empowered to grant temporary
injunction/stay.
C.P.C.-Order XLIII Rule 1(r)-Partition suitrefusal or grant of interim order-Appeal
maintainable-dismissal of revision-saying
interlocutory order-held-illegal.
Held: Para-22
In view of above, it is held that an
appeal shall lie against an order granting
or refusing temporary injunction/stay in
the proceedings under Section 176 of
U.P.Z.A. & L.R. Act.
Case Law discussed:
[1999 (17) LCD-201]
(Delivered by Hon'ble Ritu Raj Awasthi, J.)
1. Heard learned counsel for the
petitioners as well as learned Additional
Chief Standing Counsel Mr.M.E. Khan
and
perused
the
records.