C.R. No.3661 of 2008 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.3661 of 2008 (O&M) Date of Decision: 18.05.2009 Ranjit Kaur .......Petitioner Versus M/s M.B. Industries through its registered partner Sh. Sushil Chhabra ....Respondent Present: Mr. Puneet Jindal, Advocate for the petitioner. Mr. Arun Palli, Sr. Advocate with Mr. Sushil Garg, Advocate and Mr. Jai Bhagwan, Advocate and Mr. Parminder Singh, Advocate for the respondent. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. The decree-holder, who had obtained an order of ejectment against his tenant and the legal representatives of yet another co-tenant, was resisted in the execution process by an objection taken at the instance of a person, who was named as the 7th respondent in the rent petition to describe himself as representing M/s M.B. Rubber Industries, a firm that was not impleaded as a party in the proceedings. The Executing Court rejected the objection and ordered further process in execution by observing that such a third party like M/s M.B. Rubber Industries would have an independent remedy by means of civil suit but it cannot cause an obstruction. This order, which was made by the Rent Controller-cum-Civil Judge (Senior Division) Jalandhar on C.R. No.3661 of 2008 (O&M) -2- 04.01.2007 was assailed in an appeal to the District Judge, Jalandhar by the objector M/s M.B. Industries on the ground that if the status of the objector was seen as a third party and who was claiming independent right to be in possession other than through the decree- holder, the Rent Controller could not have directed an independent adjudication by a civil suit but it should have been adjudicated only as a matter that falls for consideration under Order 21 Rule 97. Learned District Judge by his order dated 03.06.2008 directed the application to be remanded to the Rent Controller for deciding afresh the contention raised by the objector and the response by the decree-holder to the objections by M/s M.B. Industries. 2. The revision petitioner-decreeholder vehemently contends through the counsel that first of all the appeal itself was not maintainable for an objection taken was really an objection by the judgement-debtor himself and the adjudication should be taken as only an order passed under Section 47 CPC, which was not appealable and for the same reason, the order passed by the Appellate Court was also not competent. The second objection to the order passed was that there was no scope for a fresh enquiry since the petition had been filed only against all the tenants and the objection that was taken was at the instance of 6th respondent named in the petition but he had set up a cloak of a partnership only to resist unlawfully an order of eviction that had been passed and the person that was obstructing had no legal right to obstruct the execution and it was not a case of a third party setting up independent title to the property through a person other than a decree-holder to merit consideration of the case as under Order 21 Rule C.R. No.3661 of 2008 (O&M) -3- 97 CPC. 3. Learned counsel for the respondent-objector states that even the petition of the decree-holder on merits referred to the status of the objector M/s M.B. Industries as a third party and if the petition was filed by third party, the proper procedure would have been only to make an adjudication under Order 21 Rule 97, which order would also be appealable since the decision at the instance of the third-party stating his objection to the executability of the decree was in the nature of a decree as per Order 21 Rule 101 and that appeal was possible. Learned counsel refers to provisions of Section 17 of the East Punjab Urban Rent Restriction Act, 1949 to contend that every order passed under Sections 10 or 13 of the Act and every order passed on appeal under Section 15 shall be executed by a Civil Court having jurisdiction in the area as if it was a decree of the Court and consequently the process in execution process will have all the trappings of execution of process a Civil Court decree and the provisions of Order 21 will be applicable proprio vigore. He also relies on the decision of this Court and of the Hon'ble Supreme Court to contend that after the amendment to the Civil Procedure Code by Amendment Act, 1976, a decision on the objection by a party would amount to a decree as contemplated under Order 21 Rule 101 and 103 and remedy would be only by means of appeal (vide Attar Singh & Ors. Vs. Hargyan (died) thru LRs. 2005 (3) Civil Court Cases 374 (P&H); S. Rajeswari Vs. S.N. Kulasekaran & Ors. 2006 (3) Civil Court Cases 456 (S.C.); Gram Panchayat, Hassanpur Vs. Jagdish Chand & Ors. 2008(1) Civil Court Cases 364 (P&H); Pohlo Ram Sharma & Ors Vs. Narinder Singh Randhawa & C.R. No.3661 of 2008 (O&M) -4- Ors. 2008(1) Civil Court Cases 801 (P&H). 4. Learned counsel for the petitioner refers to a decision of Hon'ble Supreme Court in Silverline Forum Pvt. Ltd. Vs. Rajiv Trust and another AIR 1998 SC 1754, which lays down that the obstruction of a third party in execution shall be considered by the Executing Court and the Court could pass order on inquiry or in appropriate cases, if it is found that there was nothing to adjudicate upon, to proceed further in execution. According to him, this was a case where the obstruction was made by a person, who was a Judgment-Debtor himself but who was deliberately setting up a cloak of a fictitious contrivance of a firm when he was actually only a Judgment-Debtor. 5. The strength of the respective contentions of parties cannot be adjudicated summarily by either accepting the contention of objector that he was party, who was a distinct legal entity claiming under person, who was not a decree-holder or by accepting the contention of the decree-holder that the person objecting was only the Judgment- Debtor but he was setting up a veil of plausibility by cooking up a sham defence. If the objections are untenable as contended by the decree-holder, it would still have been done by the Executing Court by finding that the person objecting purporting to be a firm was a creation subsequent to the tenancy agreement by the landlord with his tenants and therefore, the landlord was entitled to ignore such a subsequent formulation and obtain eviction against persons, who are directly the tenants or persons, who are legal representatives of one or more of the deceased tenants. On the other hand, if the defence is true and the obstruction is at the instance of a third party to the rent control C.R. No.3661 of 2008 (O&M) -5- arrangement, who claimed his right in a distinct capacity as a partner of a firm that owed its occupation at the premises to a person other than the decree-holder, then such a contention must merit an adjudication in favour of such third party and the Executing Court would be justified in even coming to the conclusion that the decree could not be executed with the obstruction of a third party, who has an independent remedy. Either way, the matter would require an adjudication and the disposal as it was originally done by the Executing Court, which was set aside by the Executing Court cannot be found fault with. 6. The decree has been passed on 13.09.2003 and the matter has been locked up in litigation, arising out of the objections taken as above and the case getting tied up in all the three judicial tiers of the hierarchy on the execution side. Having regard to the facts and circumstances, it is requested that the Executing Court takes up an adjudication on the pleadings already available and it shall be impermissible for parties to add any more pleadings than what they have already stated and make an adjudication at the earliest without any further waste of time and dispose of within a period of six months from the date of when the order is passed and the records are received by the Executing Court. 7. The civil revision is disposed of in the above terms. (K. KANNAN) JUDGE May 18, 2009 Pankaj*