Sir Sobha Singh And Sons Pvt. Ltd. vs Shashi Mohan Kapur (Deceased) Through ...

3. A few facts need mention hereinbelow for the disposal of this appeal, which involves a short point.

6. The appellant is the landlord of a Flat­G­81, IInd floor along with one Servant Quarter J­3­62, IIIrd floor situated at Sujan Singh Park, New Delhi (hereinafter referred to as "suit house”).

7. The appellant let out the suit house to the father of the original respondent­Late Mr. R.L. 2 Kapur as back as in 1959. The appellant, however, determined the tenancy by serving a quit notice to Mr. R.L. Kapur on 21.12.2004. Mr. R.L. Kapur died on 13.07.2007 leaving behind the respondent as his legal representative.

8. The appellant served another quit notice dated 16.01.2009 to the respondent and called upon him to vacate the suit house. Since the respondent failed to vacate the suit house, the appellant was constrained to file Civil Suit in 2009 (Old No.369/2009 new number 675/2009) against the respondent in the Court of ADJ for his eviction from the suit house and the mesne profits.

9. The respondent, after entering his appearance in the suit, did not contest it and compromised the matter with the appellant. It was agreed that the respondent (tenant) would hand over the vacant possession of the suit house on or before 31.05.2016 to the appellant; Second, the 3 respondent would pay a sum of Rs.5,000/­ per month towards user charges w.e.f. 01.06.2012 till the date of handing over of the suit house to the appellant; and third, the respondent would not sublet or create any third party rights in the suit house.

12. By order dated 09.06.2016, the Trial Court allowed the said application and granted time to the respondent till 15.07.2016 to vacate the suit house. The respondent was also directed to clear the arrears of rent.

13. Instead of vacating the suit house on 15.07.2016, the respondent filed another application on 18.07.2016 and further sought time to vacate the suit house. The Trial Court, by order dated 08.08.2016, dismissed this application and declined to extend the time to vacate the suit house. As a result of the dismissal of this application, the respondent was under a legal obligation to vacate the suit house immediately.

15. The Executing Court, by order dated 30.09.2016, issued a warrant of possession against the respondent/Judgment debtor in respect of suit house. Since the respondent obstructed the execution of decree, the appellant applied to the Executing Court for providing him the police assistance for obtaining possession of the suit house from the respondent. In the meantime, the Judgment debtor died leaving behind the present respondent as legal representative of the original tenant.

The second ground was that no decree was drawn by the Trial Court after passing the consent order dated 01.06.2012; and the third ground was that the suit in which the consent order dated 01.06.2012 was passed was not maintainable in 8 view of Section 50 of the Delhi Rent Control Act. The appellant filed his reply to the aforementioned applications denying all the three grounds raised by the respondent.

19. By order dated 22.10.2018, the Executing Court dismissed the applications filed by the respondent (Judgment debtor). The Executing Court held that the respondent was indulging in delaying tactics only to avoid the execution of the consent order dated 01.06.2012. The Executing Court dealt with each objection raised by the respondent and found no merit in any of them. The Executing Court held that the respondent having taken time twice to vacate the suit house did not honor the orders of the Court and, therefore, while dismissing his applications and the application of one Mr. Manomohan Kapur imposed a cost of Rs. 5 lakhs upon each of them with a direction to pay 50% to 9 the appellant and remaining 50% to the Delhi Legal Services Authority.

20. The respondent felt aggrieved and filed first appeal before the Delhi High Court. By impugned order, the High Court allowed the appeal and set aside the order dated 22.10.2018 passed by the Executing Court. The High Court held that since the Trial Court did not draw up the formal decree after passing the consent order on 01.06.2012, the Execution Petition filed by the appellant (decree holder) is not maintainable. The High Court, however, granted liberty to the appellant (decree holder) to apply to the Trial Court under Section 152 of the Code for drawing up a decree in terms of the consent order dated 01.06.2012. The appellant (decree holder) felt aggrieved by this order of the High Court and has filed the present appeal by way of special leave in this Court.

(h) the amount of the costs (if any) awarded;

28. Order 20 Rule 7 deals with the date of decree. It says that the decree shall bear date the day on which the judgment was pronounced and when the judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree.

39. As mentioned above, the Executing Court dismissed the applications filed by the respondent with a cost of Rs. 5 lakhs which resulted in issuance of warrant of possession of the suit house. The High Court, by impugned order, set aside the order of the Executing Court and dismissed the execution application as being not maintainable. The High Court, however, did not then consider it necessary to examine the question as to whether 21 the Executing Court was right in rejecting the respondent’s applications.

50. This takes us to examine the last question as to whether the Executing Court was right in imposing a cost of Rs.5 lakhs on the respondent for filing applications raising therein frivolous objections to avoid execution of the decree against them. As mentioned above, the Executing Court while rejecting the respondent’s objection imposed a compensatory cost of Rs.5 lakhs on the respondent. In our view, though we find that it is a fit case for imposition of cost but imposition of cost of Rs.5 Lakhs is excessive.

51. Having regard to all facts and circumstances of the case which we have discussed above, we consider it just and proper to impose a compensatory cost of Rs. 50,000/­ on the respondent under Section 35­A of the Code. Let it 27 be paid by the respondent to the appellant within one month from the date of this order.

53. In view of the foregoing discussion, we hold that the execution petition filed by the appellant is maintainable and was, therefore, rightly allowed by the Executing Court by rejecting the objections raised by the respondent except with two modifications indicated above.

54. The appellant is hereby granted two weeks’ time to apply under Section 151 read with Order 20 Rule 6(A) of the Code to the concerned Court with a 28 prayer for passing a decree in accordance with the order dated 01.06.2012 passed under Order 23 Rule 3 of the Code. In the peculiar circumstance of this case, we would expect the Court concerned to pass and draw the decree without any delay and, in any case, within one week of moving of the application by the appellant. It is also made clear that such act of passing and drawing up the decree being formal in nature, no objection or dispute in that regard is to be entertained by any Court. Once the decree is drawn and its details are specified in the execution application as provided under Order 21 Rule 11 (2)(c) and the certified copy of the decree is filed, if required by the Court, in terms of Order 21 Rule 11(3) of the Code, the order of the Executing Court dated 22.10.2018 with the above modification regarding payment of costs amount will be given effect to against the respondent. 29

55. Let the aforementioned procedural proceedings be completed within the time framed by the concerned Court. The respondent is, however, granted one month’s time to vacate the suit house after completion of the procedural formalities by the concerned Court after making payment of all arrears of rent till the date of delivery of possession of suit house to the appellant.

56. In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order is set aside whereas the order of the Executing Court is modified to the extent indicated above.

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