Case Note & Summary
The petitioner, a monthly tenant of certain premises, sub-let the same to the respondent firm for running a school. Alleging unauthorized commercial use, the petitioner filed a suit for eviction under the Maharashtra Rent Control Act, 1999. The parties entered into consent terms on 5 September 2007, wherein the respondents submitted to a decree for eviction, agreed to vacate by 31 January 2009, and undertook not to part with possession or change user. A consent decree incorporating these terms was passed. The respondents failed to vacate by the agreed date, leading the petitioner to file execution proceedings in 2012. In the execution application, the respondents opposed execution, contending that the suit was not maintainable as the landlord was not joined, and thus the consent terms were void and fraudulent. The executing court rejected these objections by an order dated 28 October 2015. The respondents filed a revision application before the Small Causes Court Appellate Bench, which, by the impugned order dated 26 September 2016, set aside the executing court's order, allowed an application for production of documents, and directed the executing court to reconsider the objections in accordance with the procedure under Order 21 Rules 97 to 105 of the Code of Civil Procedure, 1908. The petitioner challenged this revisional order in the Bombay High Court under Article 227 of the Constitution, contending that the revisional authority erred in mandating such procedure for objections raised by the judgment-debtors themselves. The High Court issued rule on the petition. The judgment text does not provide the final determination of the writ petition.
Headnote
A) Civil Procedure - Execution - Objections by Judgment-Debtors - Code of Civil Procedure, 1908, Order 21 Rules 97-105 - Executing court had rejected judgment-debtors' objections to execution of a consent decree for eviction on ground of maintainability; revisional authority set aside that order and directed reconsideration following the procedure under Order 21 Rules 97-105 CPC. The writ petition challenged this direction. (Paras 1-9)
Issue of Consideration
Whether the revisional authority was correct in setting aside the executing court's order and directing reconsideration of defendants' objections under Order 21 Rules 97-105 CPC, given that the defendants challenged the consent decree as void due to non-joinder of landlord?
Law Points
- Execution of consent decree
- sub-tenancy
- maintainability of suit without landlord
- fraud
- objections under Order 21 Rules 97-105 CPC
- mesne profits
- appointment of receiver
Case Details
2017 LawText (BOM) (07) 86
Writ Petition No. 6733 of 2017
Mr. Vineet Naik, Senior Advocate with Mr. Prahlad Paranjape, Ms. Neha Shah, Mr. Rushabh Sheth, Ms Pooja Batra i/b M. S. Bodhanwalla and Co (for Petitioners); Mr. Atul Damle, Senior Advocate with Shivani Samel and Akshay Petkar (for Respondents)
Nakshatra Properties Private Limited
Hiya Associates and Others
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Nature of Litigation
Execution of consent decree for eviction of sub-tenant
Remedy Sought
Petitioner seeks to set aside revisional order dated 26 September 2016 and restore executing court's order rejecting judgment-debtors' objections
Filing Reason
Petitioner filed writ petition under Article 227 challenging revisional authority's direction to follow Order 21 Rules 97-105 CPC for judgment-debtors' objections to execution of consent decree
Previous Decisions
Executing court rejected judgment-debtors' objections by order dated 28 October 2015; revisional authority set aside that order and directed reconsideration following Order 21 Rules 97-105 CPC
Issues
Whether the revisional authority erred in directing the executing court to follow the procedure under Order 21 Rules 97-105 CPC for objections raised by judgment-debtors to a consent decree?
Judgment Excerpts
By the impugned order, the Revisional Authority (the Small Causes Court, Appellate Bench, Mumbai) set aside the order dated 28th October, 2015 passed by the Executing Court in Execution Application No.31 of 2013 and further ordered that the Application filed by the Defendants at Exhibit-22 for production of documents was allowed and the Executing Court was directed to reconsider the objections raised by the Defendants. The Revisional Authority further directed that the objection of the Defendants was to be considered by following the procedure laid down under Order 21 Rule 97 to 105 of the Code of Civil Procedure, 1908.
It is on this basis that the Plaintiff sought a declaration that the Defendants have become liable to be evicted from the suit premises and that they be ordered and decreed to handover vacant possession of the suit premises to the Plaintiff.
According to the Defendants, the maintainability of the suit was overlooked by both parties and they filed Consent Terms on 5 th September, 2007 which itself is bad in law and not binding on parties. This, according to the Defendants, was a fraud and therefore the decree could not be executed.
Procedural History
Plaintiff filed R.A.E. Suit No.872/1383 of 2007 for eviction; consent terms filed on 5 September 2007 and decree passed; execution application No.31 of 2013 filed on 18 December 2012; executing court passed order on 28 October 2015; revision application No.333 of 2015 filed; impugned revisional order dated 26 September 2016 set aside executing court's order and directed reconsideration under Order 21 Rules 97-105 CPC; present writ petition filed under Article 227 of Constitution.
Acts & Sections
- Code of Civil Procedure, 1908: Order 21 Rules 97-105, Order XL Rule 1
- Maharashtra Rent Control Act, 1999:
- Constitution of India: Article 227
