IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 75 of 2009 Mohammad Yakub Kureshi S/o Late Mohammad Yusuf Kureshi R/o Mohalla-Niyajganj, Almora District Almora. …… Appellant/Third party. Versus 1. Ramesh Nath Goswami S/o late Prem Nath Goswami R/o Shankar Bhairav Mandir Mall Road, Almora. .……….Respondent/decree holder. 2. Nanhe Miyya S/o Abdul Rahman Naz hair dressing, near Shankar Bhairav Temple, Mall Road, Almora District Almora. ………..Respondent/performa Shri N.S. Negi, Advocate for the appellant. Shri B.D. Pandey, Advocate for the respondent. Per:-Hon’ble Prafulla C. Pant, J. This appeal, is directed against the order dated 02.05.2009, passed by Executing Court (District Judge, Almora/Judge Small Cause Court, Almora), in Misc. Case No. 26 of 2007, whereby objections of the third party (present appellant), are rejected. 2. Heard learned counsel for the parties and perused the papers on record. 2 3. Brief facts, giving rise to this appeal are that respondent No. 1-Ramesh Nath Goswami, is owner/landlord of the shop in question, situated near Shankar Bhairav Mandir, Mall Road, Almora. Defendant/judgment debtor Nanhe Mian (present respondent No. 2) was the tenant in said house. The plaintiff/present respondent No. 1 instituted S.C.C. suit No. 02 of 2006, before Judge Small Cause Court/District Judge, Almora, for recovery of arrears of rent and damages amounting Rs. 20,000/- and eviction of the defendant (present respondent No. 2). Said suit was decreed by the trial court vide its judgment and decree dated 26.02.2007. Thereafter plaintiff/decree holder, filed S.C.C. Execution Case No. 01 of 2007 in which the third party (present appellant), filed its objection under Order 21 Rule 97 of Code of Civil Procedure, 1908. After recording the evidence and hearing the parties, the objections were dismissed vide impugned order dated 02.05.2009, by the Executing Court. Hence this appeal. 4. Learned counsel for the appellant argued that third party appellant Mohammad Yakub Kureshi is tenant after original tenant Nanhe Mian, left the shop in question. On the other hand, learned counsel for respondent No. 1/decree holder pleaded that third party (present appellant) is servant of the original tenant Nanhe Mian, and his unauthorised 3 occupation cannot be protected in the execution proceedings. 5. Shri N.S. Negi, learned counsel for the appellant (third party) drew attention of this Court to the fact that the defendant had got electric connection installed in the shop in question. He has got the shop registered with the Labour Department. But in the opinion of this Court, what is required to be seen is whether the third party (appellant) has a status of independent tenant as alleged by him. On behalf of the third party/appellant not even a single receipt of payment of rent could be shown. Nor any receipt is shown if the rent was deposited in the court. Merely for the reason that electric connection has been obtained in the name of the third party/appellant and he has got his shop registered with the Labour Department, does not make his occupation legal in the shop, as against the plaintiff/decree holder. Learned counsel for the appellant contended that the appellant paid Rs. 75,000/- as a security to the landlord (respondent No. 1-Ramesh Nath Goswami). But no receipt could be shown relating to payment of such a huge amount to the land lord. 6. Having gone through the record and after considering the submissions of learned counsel for the parties, in the above circumstances, this Court does not find any error of law or that of fact 4 committed by the Executing Court. Therefore, the appeal is liable to be dismissed. The same is dismissed. (Stay application No. 3940 of 2009, also stands dismissed). (Prafulla C. Pant, J.) Dt:09.07.2009 Sweta 5 6 7 8 9