// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.2666/2005 Ratan Singh S/o Shri Ghamandi Singh Versus Shanker Lal S/o Tejpal and Another Date of Order ::: 04.07.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Dileep Singh Jadoun, Counsel for petitioner Shri Shankar Lal Sharma, Advocate, for Shri Suresh Pareek, Counsel for respondents #### By the Court:- Admit. At the request of the learned counsel for the parties, the matter is heard finally and being disposed of. Plaintiff-respondent No.1 filed a suit for eviction and arrears of rent against the defendant-petitioner wherein the trial court determined the provisional rent vide order dated 5th August, 1974 at the rate of Rs.30/- per month, but, while passing the final decree on 29th April, 1983, the trial court directed the defendant-petitioner to pay the monthly rent at the rate of Rs.150/- per month with effect from 1st February, 1974. The landlord filed an appeal and the first appellate court passed a decree of eviction also. However, in second appeal // 2 // preferred on behalf of the tenant, the decree passed by the first appellate court in respect of eviction of the petitioner was set-aside but rest of the order was maintained. Subsequently the defendant-petitioner did not pay monthly rent at the rate of Rs.150/- per month, therefore, the plaintiff filed an application for execution of the decree of the trial court for recovery of the amount of rent. The case of the defendant-petitioner before the Executing Court was that trial court fixed monthly rent at the rate of Rs.30/- per month vide order dated 5th August, 1974 and he has already made the payment at the rate of Rs.30/- per month, hence the application for execution is liable to be dismissed. The learned Executing Court considered all the facts and circumstances including the order dated 5th August, 1974 as well as final decree dated 29th April, 1983 passed by the trial court, the decree of the appellate court dated 26th November, 1994 and the judgment dated 28th January, 1997 passed by this Court in Second Appeal, and passed an order directing the defendant to pay the monthly rent of the rented premise at the rate of Rs.150/- per month, failing which it ordered to issue recovery warrant. The said order passed by the Executing // 3 // Court has been challenged by the defendant- petitioner in the present writ petition. The learned counsel for the petitioner contended that the trial court determined the amount at the rate of Rs.30/- per month vide order dated 5th August, 1974 which was affirmed by the High Court in the Second Appeal No.107/95, vide judgment dated 28th January, 1997, hence the Executing Court committed an illegality in directing the defendant to pay monthly rent at the rate of Rs.150/- per month, therefore, the order passed by the Executing Court is liable to be set-aside. The learned counsel for the respondent contended that the submission of the learned counsel for the petitioner is per-se not tenable on the face of the judgments passed by the High Court as well as the trial court, both. The High Court did not affirm the order dated 5th August, 1974 and could not have affirmed the same as it was only an interim order determining the provisional rent. The final decree by the trial court was passed vide judgment and decree dated 29th April, 1983 and the defendant was directed to pay monthly rent at the rate of Rs.150/- per month with effect from 1st February, 1974. I have considered the submissions of the learned counsel for the parties and examined the // 4 // orders dated 5th August, 1974 and 29th April, 1983 of the trial court, and the order dated 28th January, 1997 of this Court, and find that this Court never upheld the order dated 5th August, 1974 while deciding the Second Appeal vide judgment dated 28th January, 1997. The order dated 5th August, 1974 was only an order determining the provisional rent under Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The trial court passed final judgment and decree dated 29th April, 1983 whereby the defendant was directed to pay monthly rent at the rate of Rs.150/- with effect from 1st February, 1974. The Executing Court has rightly passed the impugned order dated 3rd March, 2005 and it does not call for any interference of this Court in any manner whatsoever. In view of the above discussion, I do not find any merit in this writ petition and the same is accordingly dismissed with no order as to costs. (Narendra Kumar Jain) J. //Jaiman//