wp2573.11.odt 1/4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETN. NO.2573/2011 Kshitij Baldeoraj Sahani -vs- Registrar, Small Causes, Court, Nagpur and another ------------------------------------------------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's Orders. or directions and Registrar's orders. ------------------------------------------------------------------------------------------------------------------------------------ Shri A. M. Sudame, ld. counsel for the petitioner. Shri V.V.Bhangde, ld. counsel for the respondent No.2. CORAM : R. M. SAVANT, J. DATED : 08/07/2011. The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 30/04/2011, by which order the application filed by the respondent No.2-landlady for breaking open the lock of the premises in question in execution of the decree dated 30th September, 2009 passed by the Small Causes Court, Nagpur, came to be allowed. The petitioner herein is the son of one Baldeoraj Sahani, who was the tenant in respect of a shop block admeasuring 298 sq.ft. in Nagpur Municipal Corporation House No.729 (Old) 757 (New), Nagpur Improvement Trust Plot No.58, Lahoti Sadan, Central Avenue Road, Nagpur. The respondent No.2 is the landlady, who had filed Regular Civil suit No.24/2008 for possession of the suit premises under Sections 15, 16 (1) (e), (g) and (n) of the Maharashtra Rent Control Act, 1999. The said suit came to be decreed by the wp2573.11.odt 2/4 judgment and order dated 30th September, 2009 and an order of eviction came to be passed against the said Baldeoraj Sahani. From the point of view of the present proceedings, it is required to be noted that the petitioner as the power of attorney of his father Baldeoraj Sahani deposed as under - “6] Xerox copy of registration certificate of Establishment of Vinayak Book Shop is shown to the witness and witness has admitted contents of this document as of his shop. It is at Exhibit 67. It is not correct to say that suit premises is in my exclusive possession. It is not correct to say that my father i.e. defendant sub let the suit premises to me and I am doing the business of Vinayak Book Shop in the suit premises. It is not correct to say that the suit premises is not being used by the defendant i.e. my father. 7] It is correct to say that suit premises was given on rent to my father in his individual capacity. It is not correct to say that there was no any joint business run by my father with other person of his family in the suit premises. It is not correct to say that my father was not in need of suit premises for his business, therefore he had given the said suit premises to me.” The father of the petitioner Baldeoraj Sahani filed Regular Civil Appeal No.41/2010, which also came to be dismissed by the learned District Judge-3, Nagpur by his judgment and order dated 29/07/2010. The decree in question was thereafter put in execution by the respondent No.2- landlady and when the Bailiff went to serve the warrant of possession, the premises in question were found to be locked. wp2573.11.odt 3/4 The Bailiff accordingly submitted his report to the Court. The respondent No.2-landlady, therefore, filed an application for breaking open the lock and taking possession of the suit premises. The said application came to be allowed by the order dated 30th April, 2011. The petitioner on coming to know of the said order dated 30th April, 2011, filed an application under Order 21 Rule 97 of the Civil Procedure Code, which is in the nature of an obstructionist notice. In the instant petition, it is the case of the petitioner that till such time as the said application filed by him under Order 21 Rule 97 of the Civil Procedure Code is decided, the order dated 30th April, 2011 may not be allowed to be executed. In my view, the same cannot be countenanced for the following reasons. Though, it is trite that even a third party can obstruct the execution of the decree. However, in the instant case, it is required to be borne in mind that the petitioner herein is the son of the tenant, who has specifically deposed that he was not in exclusive possession of the tenanted premises and that his father was the tenant. It is further required to be noted that in so far as the case of subletting is concerned, which was sought to be urged by the respondent No.2-landlady in the said proceedings in reply to the said case, it was the case of the petitioner that there was no subletting and that the petitioner was merely staying with his father. Viewed from the said angle, the decree dated 30th September, 2009 passed against the father of the petitioner Baldeoraj Sahani wp2573.11.odt 4/4 would apply with equal force to the petitioner herein and he would also be bound by the said decree. In view of the fact that the petitioner did not claim any right qua the premises in question in the trial Court, the relief sought by the petitioner in the instant petition to stay the execution of the order dated 30th April, 2011 cannot be entertained. The reliance placed by the learned counsel for the petitioner on a judgment of the Apex Court reported in 1997 (3) SCC 694 in the matter of Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another would be of no avail to the petitioner in the light of the conspectus of facts that have been stated herein above. In that view of the matter, no case for interference is made out. The writ petition is accordingly dismissed. JUDGE KHUNTE