IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No 148 of 2001 For Approval and Signature: HON'BLE MR.JUSTICE KUNDAN SINGH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- YUSUFKHAN MEHMOODKHAN PATHAN Versus HEIRS OF HAZI MOHAMADBHAI HAZI DUDHWALA -------------------------------------------------------------- Appearance: 1. Civil Revision Application No. 148 of 2001 MR GIRISH D BHATT for Petitioner No. 1-3 MR MTM HAKIM for Respondent No. 1-1/2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE KUNDAN SINGH Date of decision: 24/09/2003 ORAL JUDGEMENT 1. Regular Civil Suit No. 156 of 1977 was filed by the original plaintiff-landlord against the tenants-petitioners herein for possession of the suit premises and that suit was compromised on the basis of the compromise pursis filed by both the parties on 13-4-1981, whereby the tenants-defendants were permitted to deposit the entire arrears of rent on or before 17-10-1981. Thereafter, the aforesaid civil suit was decreed for eviction in terms of the compromise arrived at between the parties on 13-4-1981 on failure to deposit the entire arrears of rent by the tenant within stipulated time, the tenant will be evicted from the rented premises and the decree will be treated for eviction of the tenant. On or before the stipulated time, the tenants-defendants did not deposit the entire arrears of rent, the plaintiff-respondent filed Execution Petition No.71 of 1983 on 27-2-1983 and during pendency of the said execution proceedings the original plaintiff died on 1-3-1986. Execution Petition No. 71 of 1983 was decided by the Executing Court on 18-10-1985 as disposed of in absence of plaintiff and for non-prosecution on behalf of the plaintiff. It is mentioned in the said order dated 18-10-1995 that if the defendants do not pay the outstanding amount of arrears of rent within the stipulated time mentioned in the order/decree, the plaintiff would be entitled for possession of the suit premises in question. The defendants-tenants filed Objection Application vide exh.7 wherein they have stated that they have already paid the entire amount of arrears of rent within the time limit mentioned in the order/decree. Therefore, the plaintiff is not entitled to recover possession of the suit premises on the basis of the compromise decree as against the Objection Application exh. 7 no reply or written statement was filed by the plaintiff. The plea that the objection raised by the defendants-tenants are not true. The objection application exh.7 produced the defendants-tenants was filed on 9-4-1984, even after lapse of 12 years' time. The plaintiff has not taken any step to controvert and deny the objections raised by the defendants-tenants and in absence of the plaintiff for non-prosecution on behalf of the plaintiffs, the said execution application was disposed of vide order dated 18-10-1995 by the Executing Court. Thereafter, the property was sold by the heirs of the original landlord to the present landlord. Thereafter, subsequent owners of the suit property filed Execution Petition No. 41 of 1997 on 5-12-1997 and the same was allowed by the Executing Court on 25-11-1999 and the Executing Court issued possession warrant as well as "jangam" warrant under Order 21 Rule 43 and 35 of the Civil Procedure Code on payment of process fee by 16-12-1999 stating therein that the present execution application exh. 7 was filed by the present decree holder against the judgment debtor to recover the possession of the suit premises as per the decree passed in Regular Civil Suit No. 156 of 1977. The present decree holder (original plaintiff) had filed Execution petition No. 71 of 1983 and that was disposed of due to negligence and non-prosecution on behalf of the decree holder (original plaintiff). Hence, Execution Petition NO. 41 of 1997 was filed by the present decree holder against the present judgment debtors (original defendants). The judgment debtors had filed their reply to Execution Petition No. 41 of 1997 vide exh. 10 in which it is stated the present execution petition is not admitted and it is false. It was also mentioned that the present respondent no. 2 - Hajibhai Fakirmohammed Dudhwala who has filed the present Execution Petition has no right or power to file the execution petition and hence it deserves to be dismissed. Haji Mohammedbhai Dudhwala who has died before so many years and Hajibhai Fakirmohammed Dudhwala who has filed the present petition has no status and has not given any explanation in that regard and without joining heirs of deceased Haji Mahmadbhai as original decree holder as a party. The execution petition is not tenable in the eye of law and hence the same cannot be executed under the guise of "Darkhast" and no order can be passed in favour of the decree holder as Rent Suit No. 156 of 1977 was decreed on the basis of the compromise on 13-4-1981 and the execution petition filed on 5-12-1997 cannot be executed as it is time barred as it was filed after 12 years and also the decree was passed on the basis of the compromise holding that in case the entire amount of arrears of rent is paid by the tenants within specified period, the plaintiff-landlord will have no right to recover possession of the suit property and if the tenants-defendants fail to pay the same then the decree holder would be entitled to recover possession of the suit premises. The Executing Court also found that Execution Petition No. 41 of 1997 has been filed within the time limit as Execution Petition No. 71 of 1983 was disposed of for non-prosecution on 18-10-1995. The compromise decree dated 13-4-1981 has not been complied with as per the order and direction given in the decree and hence the decree holder filed Execution Petition No. 71 of 1983 but it was disposed of for non-prosecution due to negligence on the part of the decree holder on 18-10-1995 and therefore the decree holder has filed Execution Petition No. 41 of 1997 in which the judgment debtor had filed objection petition. Considering the fact that since the decree holder could not enjoyed the fruits of the decree for more than 30 years, he has filed the present execution petition and therefore the execution petition deserves to be allowed in view of the several authorities cited by the learned advocate for the petitioner in support of his arguments and possession warrant and "Jangam" warrant were issued as per law vide order dated 25-11-1999. That order dated 25-11-1999 was challenged by the judgment-debtors defendants by way of preferring Civil Revision Application No. 23 of 1999 before the District Court, Vadodara which was dismissed by the learned 4th Extra Assistant Judge, Vadodara vide judgment and order dated 11-1-2001 holding that even after second execution petition , the tenants-defendants have not paid a single "pai" till 17-10-1981 and even after the order passed 11-1-2001 in the said civil revision application the tenants-defendants do not want to pay the arrears of rent and they want to nullify the decree on the ground that it is a penal decree and the suit decreed on the basis of the compromise cannot be said to be a penal decree as the judgment debtors defendants have not been penalised by the decree but the tenants-defendants were benefited by the compromise decree. 2. The contention of the learned counsel for the defendants-tenants that the decree holder had sold the suit property to Hajibhai Fakirmohammed Dudhwala who had filed Execution Petition No. 41 of 1997 as it was not specified in the sale deed that the decree has been transferred to Hajibhai Fakirmohammed. As per the sale deed the right of the seller to get the suit property vacated was transferred to the purchaser. Consideration for right, title and interest includes the total sale price paid by the purchaser to the seller. Hence, the Courts below held that the purchaser obtained the right to get the suit property vacated from the possession of the tenants-defendants. Thus, the decree holder has right to get the suit property vacated on the ground of default of payment of arrears of rent. It was also held by the Courts below that the decree holder is entitled to both; the arrears of rent as well as possession of the suit property as both the reliefs were granted in the decree which was passed with consent of the judgment-debtors. Accordingly, aforesaid Civil Revision Application was dismissed vide the judgment and order dated 11-1-2001. 3. Being aggrieved and dissatisfied by the judgment and order dated 11-1-2001 passed by the learned 4th Extra Assistant Judge, Vadodara in Civil Revision Application, No. 33 of 1999 the present civil revision application has been preferred by the tenants -defendants - judgment debtors before this Court. 4. Learned counsel for the petitioners submitted that the Court below have wrongly considered that the petitioners have not paid a single "pai" within the time prescribed by the compromise and thereafter till the date of the order passed by the Court below. He has placed certain photo-state copies of the lower court's record to show that on 21-9-1978 amount of Rs.500/- was deposited, on 7-10-1978 amount of Rs.1000/-, on 27-2-1980 amount of Rs.500/- was deposited, on 2-4-1980 Rs. 350/-, 24-7-1980 Rs.360/-, on 19-10-1981 amount of Rs.2000/- and on 23-10-1981 amount of Rs.2000/- was deposited. 5. Thus, it appears that the learned advocate for the petitioners did not point out to the lower court that required amount has been paid or relevant papers were not produced before the court below at the relevant time when the judgment and order on 11-1-2001 was passed. Therefore, it appears that some mistake has been committed by the Courts below regarding payment of arrears of rent or amount deposited by the petitioners-defendants but it is ascertained that the tenant had not deposited required amount in compliance with the compromise decree within stipulated timei.e. 17-10-1981. 6. Next contention of the learned counsel for the petitioners is that in the Court below the revision application is not maintainable but an appeal is maintainable in view of the full bench decision of this Court in the case of Pranshankar Shankarlal Joshi and others V. Fulsinhji Kesharsinhji Parmar, reported in AIR 1985 Gujarat 9, wherein it has been held as under : "In 1953, when the proviso (I) was introduced to S.29 (1) of the Bombay Act, an appeal was competent against the determination of any question made under S.47 Civil P. C., and it was appealable as if it were a decree and the orders passed under S. 47 of the Code in execution proceedings were appealable. But after the Civil P.C. amendment in 1976, reference to S. 47 of the Civil P.C. is omitted from the definition of "decree" therein by the Amendment Act, 1976, holding that the C.P.C. mentioned in the Rent Act and the Rules made thereunder, would that code as it stood in 1953 when it came to be incorporated in the Rent Act and not as amended in 1976 and an appeal would therefore lie against the determination of any question u/s 47 of the C.P.C. in execution proceedings under the Bombay Rent Act and Rules made thereof on the principle." 7. While on the other hand, learned counsel for the respondents contended that the revision application was filed by the petitioners themselves before the lower appellate court though the order was appealable as per the law laid down by the above decision of the Full Bench of this Court in the case of Pranshanker Shankarlal Joshi (supra). In the court below the petitioners could have made a request or prayer to treat the civil revision application as an appeal but they have not made any such prayer or request before that Court therefore the petitioners cannot be permitted to treat the civil revision application as an appeal against the impugned order passed by the Executing Court and the petitioners are barred by the principle of estoppel to say that the civil revision application filed by them the before the lower appellate court was not maintainable and the appeal could have been preferred against the impugned order passed by the Executing Court and this second revision application is not maintainable in the eye of law. He relied on the decision of this Court in the case of Parmar Bhimji Govind V. Heirs of Patel Velji Ramji, reported in 1996 (1) G.L.H. 606, wherein it has been observed as under : "The tenant has preferred Regular Civil Appeal u/s 29 (1) of the Act and Civil Revision Application u/s 29 (3) of the Act, before the District Court against the order order passed by the Court below second revision application u/s 29(2) is not maintainable in this Court. Obviously, a second revision, purportedly filed under Section 29 (2) of the said Act, is not competent. Section 29 (2) provides only for a revision to the High Court in matters where an order which is appealable, has already been decided in appeal. In cases where orders are not appealable, the only remedy available is by way of a revision to the District Court or the specified Court, under Section 29 (3) of the said Act, but certainly not by way of a revision to this Court under Section 29 (2) of the said Act. In this case, the revisional remedy under Section 29 (3) has been exhausted, and Section 29 of the said Act (and/or any other provision) does not contemplate any further revision." 8. He also relied on the decision of the Supreme Court in the case of Vishesh Kumar V. Shanti Prasad, reported in AIR 1980 SC 892, wherein it has been held as under : "The High Court is not vested with revisional jurisdiction under Sec. 115, over a revisional order made by the District Court under that section. To recognise a revisional power in the High Court over a revisional order passed by the District Judge would plainly defeat the object of the legislative scheme." 9. I have considered this contention of the learned counsel for the respondents regarding maintainability of second revision application in this Court. The provisions of Section 29 of the Bombay Rent Act or Section 115 of the Civil Procedure Code do not empower the High Court to have powers of revision against the order passed in revisional jurisdiction by the District Court, as it is a case. Moreover, revision application was preferred before the lower court against the order passed u/s 47 of the Civil Procedure Code and the petitioners-defendants have not made any prayer or request before the Court below that the revision application be treated as an appeal in place of the revision application. Even at this stage, it is considered that the revision application was filed by the petitioners before the District Court though that was not maintainable and the order passed by the court below in revisional jurisdiction can be treated as the order passed in regular appeal by the lower appellate court, this revision application can be justified on this line. The learned counsel for the petitioners could not pointed out anything that the Court below has exercised the jurisdiction as revisional court or as appellate court has committed any illegality or exceeded its jurisdiction in passing the impugned order. Even if we treat the order passed by the Court below in revisional jurisdiction as passed in appellate jurisdiction, this point could not be raised by the learned counsel for the petitioner that the Court below has committed an error in exercising revisional jurisdiction though that revisional jurisdiction could have been exercised as appellate jurisdiction. Moreover, in case, we hold that this revision application is not maintainable, the learned counsel for the petitioner can make a prayer that this revision application may be permitted to be withdrawn and to give liberty to file a separate writ petition u/s 227 of the Constitution of India as if the order has been passed under revisional jurisdiction u/s 115 of the Civil Procedure Code. In order to avoid in the interest of justice that situation and multifarious litigations, we can treat the order passed by the District Court as if the order is passed by the appellate Court. 10. The next contention of the learned counsel for the petitioners is that the compromise decree was passed on 13-4-1981 in Rent Suit No. 156 of 1977. First Execution Petition was filed on 22-2-1983 and that execution was disposed of on merit of the case and it was observed by the court below that the plaintiff was entitled to recover possession of the suit premises on the basis of the compromise decree. Hence, second Execution Petition No. 41 of 1997 filed on 5-12-1997 is not maintainable, on two grounds; firstly the order passed in Execution Petition No. 71 of 1983 on 18-10-1985 on merits of the case. Hence, Second Execution Petition No.41 of 1997 is not maintainable as barred by principle of res judicata. Secondly, the decree passed on the basis of the compromise on 30-4-1981 and that decree could have been executed within 12 years but for execution of that decree Execution Petition No. 41 of 1997 was filed on 5-12-1997 which is beyond the period of limitation prescribed by the Limitation Act. In this regard I have carefully gone through the order dated 18-10-1995 passed by the Court below whereby Execution Petition No. 71 of 1983 was decided which clearly shows that in absence of and non-prosecution on behalf of the plaintiff, said execution petition was disposed of. Meaning thereby is that the said execution petition has not been decided on merits. Even some stray observations made by the Execution Court regarding, the objection application filed by the defendants - tenants for non-prosecution of the aforesaid execution petition would not affect the character of the order whereby Execution Petition No. 71 of 1983 was decided. As such, aforesaid stray observations of the execution court below are not result on merit of Execution Petition No. 71 of 1983. As such, Execution Petition No. 71 of 1983 was not decided on merit but was decided for non-prosecution on behalf of the plaintiffs hence is not barred by principle of res judicata. 11. Learned counsel for the respondents-plaintiffs submitted that Execution Petition No. 71 of 1983 was dismissed not on merit but for non-prosecution on the part of the plaintiffs and hence Execution Petition No. 41 of 1997 is maintainable and not barred by the principle of res judicata nor in Limitation Act. In this respect, he has relied on the following decisions ; (i) Decision of the Supreme Court in the case of Sheodan Singh V. Daryao Kunvar, reported in AIR 1966 SC 1332, wherein it has been observed as under : "In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial Court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of the parties or multifariousness, or on the ground that the suit was badly framed, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate, when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional Court-Fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit" (ii) Decision of the Supreme Court in the case of Shivshankar Prasad Shah and another V. Baikunth Nath Singh, and others, reported in AIR 1969 SC 971, wherein it has been held as under : "Before a plea can be held to be barred by res judicata, that plea must have been heard and determined by the Court. The dismissal for default of the judgment debtor of an application filed by him under Section 47, Civil P.C. resisting the execution of the decree is not a final decision of the Court after hearing the parties and therefore does not operate as res judicata and he can raise that objection in a subsequent application filed him." (iii) Decision of this Court in the case of Caps and Containers & Another V. Bank of Baroda, reported in 2000 (2) G.L.R. 1701, wherein it has been observed as under : "Execution application had been filed which came to be rejected on 27th September, 1985. The present "Darkhast" was filed on 10th October, 1990. An objection has been raised that this darkhast is barred by limitation as 12 years have already expired from the date of decree which objection as not accepted and the learned Executing Court issued the jangam warrant against the petitioners. It is a case where the learned trial Court has rightly considered it to be a case of revival of the application and having taken into consideration the fact that the either two applications filed by the respondent for execution of the decree were dismissed only on the ground of non-removal of office objection. The objection that the execution is barred by limitation has been rejected." 12. I have considered the contentions raised by the learned counsel for the parties and perused the relevant case laws cited by them in support of their respective contentions. In the present case Execution Petition No.71 of 1983 was dismissed in default of the plaintiffs and that application was not decided on merits. In the light of the decision of the Supreme Court as well as of this Court as stated above, that application will not be deemed to have been decided on merits. Hence second execution petition being Execution Petition No. 41 of 1997 would not be barred by principle of res judicata and the same will be treated as revival of the earlier execution petition and would be considered as revival of the earlier execution petition which was dismissed for non-prosecution. As such the contention of the learned advocate for the petitioners that the second execution petition (No.41 of 1997) is barred by the principle of res judicata and limitation provided in the Limitation Act is not tenable. 13. Next contention of the learned counsel for the petitioners is that second execution being Execution Petition No. 41 of 1997 filed by the subsequent purchasers who are not entitled for arrears of rent and execution of the decree for eviction of the suit premises unless that right has been conferred or assigned to the subsequent owner by the previous owner of the suit property. In support of his arguments, he has relied on the decision of the Supreme Court in the case of N.M. Engineer and others V. Narendra Singh Virdi and another, reported in AIR 1995 SC 448, wherein it has been held as under : "Where in a deed by which the right, title and interest in the property in dispute was released in favour of one of the co-owners nowhere any assignment of rent was made, the assignee was not entitled to rent before assignment and the amount due prior to the deed could not constitute arrears of rent as it was merely an actionable claim. Consequently, notice demanding rent sent before the relinquishment deed by the co-owner was not valid. It was more so when, there was dispute as to amount of standard rent and the interim