As per case facts, an eviction order against the petitioners was passed in 2013 and attained finality up to the High Court. In execution proceedings, petitioners raised objections, claiming Respondent ...
CR-2378-2020(O&M)
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
(378) CR-2378-2020(O&M)
Date of Decision: 09.12.2025
Vinod Kumar & another --Petitioners
Versus
Elizabeth & another --Respondents
CORAM:- HON'BLE MR. JUSTICE VIKAS BAHL.
Present:- Mr. G.S. Sirphikhi, Advocate for the petitioners.
Mr. Harminder Singh, Advocate and
Mr. Damanjit Singh, Advocate for the respondents.
***
VIKAS BAHL.J (Oral)
1. Present revision petition has been filed under Article 227 of the
Constitution of India for setting aside the order dated 18.01.2018 (Annexure
P-11) passed by learned Civil Judge (Jr. Divn.), Batala in Execution Case
No.234 of 2014 vide which the objections filed by the petitioners under
Section 47 CPC read with Order 22 Rules 4 and 5 CPC, had been dismissed.
2. The present case is a classic case, where the
petitioners/Judgement Debtor/widow of Judgement Debtor have after the
passing of the eviction order dated 05.02.2013, which order had attained
finality, made every endeavour to delay the proceedings and hold on to
illegal possession of the property in question without paying rent/mesne
profit. The same would be apparent from the facts and reasons given in the
latter part of the present order.
ARGUMENTS ON BEHALF OF LEARNED COUNSEL FOR
CR-2378-2020(O&M)
PETITIONERS
3. Learned counsel for the petitioners has submitted that
respondent no.1 Elizabeth is either no more or is a non-existent lady and the
petitioners had raised a specific objection regarding the same in the
objections dated 13.10.2016 (Annexure P-9) filed by them to the execution
proceedings. It is submitted that in the objection petition filed by the
petitioners, it was averred that the said respondent no.1 has not been known
to be dead or alive for the last about 40-45 years and even respondent no.2
Kundan Lal Gill had fabricated her signatures upon an unregistered Power
of Attorney dated 05.05.1986. It is submitted that the said fact is prima
facie apparent from the report dated 07.03.2018 (Annexure P-15) which was
given in an appeal filed by the petitioner against the order dated 18.01.2018
vide which the objections of the petitioners were dismissed. It is further
submitted that since respondent no.1 had died, thus, the execution could not
have proceeded on behalf of respondent no.1 by her Attorney, as the
Attorney has no right to pursue the case as per Section 201 of the Indian
Contract Act, 1872. It is submitted that thus, in the said circumstances, the
objections filed by the petitioners should have been allowed and the
impugned order, vide which the said objections have been dismissed,
deserves to be set aside and the execution application filed by the
respondents and pursued by respondent no.2, also deserves to be dismissed.
It is further submitted that in the appeal filed by the petitioners against the
order vide which the objections of the petitioners were dismissed, an interim
order was passed by the Appellate Authority on 06.09.2018 taking into
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consideration the fact that a duly sworn in affidavit on behalf of respondent
no.1 had been filed and thus it was not necessary to summon the said person
as she was stated to be an old lady in a feeble condition. It is submitted that
the said order dated 06.09.2018 was challenged by the petitioners by filing
CR-250-2019 which was withdrawn with liberty to the petitioners to file an
application before the First Appellate Court on the aspect of the said lady
being a non-existent person or being no more. It is submitted that in
pursuance of the said liberty, the petitioner did file an application, but the
said application was never adjudicated upon. Learned counsel for the
petitioners has further submitted that respondent no.1 should be directed to
appear through video conferencing to show as to whether she is alive or not.
It is submitted that thus the revision petition deserves to be allowed.
ARGUMENTS ON BEHALF OF LEARNED COUNSEL FOR THE
RESPONDENTS
4. Learned counsel for the respondents, on the other hand, has
submitted that in the present case, the eviction petition was filed both by
respondents no.1 and 2 and in the said eviction petition, it was specifically
stated that it is respondent no.2 Kundan Lal Gill, who had let out the said
property to the petitioners and that respondent no.1 Elizabeth had appointed
respondent no.2 Kundan Lal Gill as her Attorney and also authorized him to
rent out the same, receive the rent and take appropriate legal action. It is
submitted that in the said petition, the present petitioner no.1 was impleaded
as respondent no.1, whereas the husband of present petitioner no.2 Anil
Kumar, who was a sub tenant, was impleaded as respondent no.2. It is
submitted that the eviction was sought on several grounds including the
CR-2378-2020(O&M)
ground of sub letting and that the Rent Controller vide order dated
05.02.2013 allowed the said application and ordered the eviction of the
petitioner no.1 and the husband of petitioner no.2 from the premises in
question. It is argued that in para 5 of the said judgement dated 05.02.2013,
the stand on behalf of the present petitioners to the effect that it was
respondent no.2, who had been receiving rent as Attorney of respondent
no.1, was noted and thus the fact that the respondent no.2 was an Attorney
of the respondent no.1 was admitted by the petitioners themselves. It is
submitted that in the proceedings before the Rent Controller, no objection
was raised on behalf of the petitioner no.1 or the husband of petitioner no.2
to the effect that the said Elizabeth was a non-existent person or was dead or
that the Attorney in favour of respondent no.2 was fabricated.
5. It is argued that the appeal filed by the petitioner was dismissed
by the First Appellate Authority and even the revision petition filed by the
petitioner no.1 was dismissed by the High Court vide order dated
04.07.2016 and that neither before the Appellate Authority nor before the
High Court any such plea, which is now sought to be taken, was taken. It is
argued that only to delay the execution proceedings, a completely frivolous
plea was taken in the objections dated 13.10.2016, which was filed within a
period of three months from the date of judgement in CR-39-2016, to the
effect that respondent no.1 was a non-existent person or was not living. It is
argued that no Death Certificate of respondent no.1 was either referred to or
produced and even the averments made in the objections would show that
even the petitioners were not aware as to whether the said respondent was
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alive or not. It is submitted that apart from the issue of estoppel, it is now
not open to the petitioners, who are Judgement Debtor/widow of Judgement
Debtor and against whom the eviction order has attained finality, to require
the Executing Court to enter into a roving inquiry as to whereabouts of
respondent no.1, instead of executing the judgement and decree. Learned
counsel for the respondents has further highlighted the fact that in the reply
filed to the said objections, several documents including an affidavit of the
decree holder as well as a fresh Power of Attorney and copy of the bank
statement of the decree holder was also filed in order to show that she was
alive. It is submitted that it was also further stated that said Elizabeth had
been residing in U.S.A with her sons and it is only to delay the execution
that the said frivolous objections had been taken. Learned counsel for the
respondents has further submitted that even a perusal of the impugned order
would show that only one objection was pressed, to the effect that further
challenge had been made by the petitioners to the order of eviction which
was pending, and no other objection was pressed and hence the petitioners
are raising objections which were never pressed before the Executing Court.
It is submitted that in the objection petition, it has been highlighted that an
S.L.P had been filed by the petitioners but the said S.L.P which was filed on
23.09.2016, had been never got listed and on 12.09.2017, the same was
withdrawn without curing the defects. Learned counsel for the respondents
has referred to the order dated 12.09.2017 of the Hon'ble Supreme Court in
the said regard and has handed over the same to the Court which is taken on
record as Mark A.
CR-2378-2020(O&M)
6. It is submitted that the reliance sought to be placed by the
petitioners upon the proceedings in the appeal filed by the petitioners
against the order dated 18.01.2018 is completely misconceived, inasmuch
as, the said appeal was not maintainable and was subsequently withdrawn
on 05.03.2020 by the petitioners after realizing that the said appeal was not
maintainable. It is submitted that the report dated 07.03.2018 which was
obtained by the petitioners in connivance with the Process Server also
would not further the case of the petitioners, as it is the constant stand of the
respondents that respondent no.1 has been residing abroad since several
years. It is further submitted that even the perusal of the zimni orders
(Annexure P-21), which the petitioners have annexed to show various
orders passed in the non-maintainable appeal filed by the petitioners, would
show that an application for mesne profit was filed by the respondents, as
the petitioners were continuing to stay in illegal occupation of the property
and several dates were taken by the petitioners to file reply to the said
application and in order to avoid an order being passed in the said
application, withdrew the appeal filed by the petitioners. It is submitted that
the petitioners have not paid rent since November, 2019 even @ Rs.1500/-
per month and are continuing to enjoy illegal possession of the property in
question. It is further submitted that the market rent of the premises in
question is Rs.30,000/- per month and thus the present petition should be
dismissed with heavy costs.
7. Learned counsel for the respondents has also produced the
affidavit dated 04.06.2018 which was produced before the First Appellate
CR-2378-2020(O&M)
Court, but has not been annexed along with the present petition. The said
affidavit is taken on record as Mark B and has not been disputed on behalf
of the petitioners.
ANALYSIS AND FINDINGS
8. This Court has heard learned counsel for the parties at length,
has perused the paper book and is of the opinion that the impugned order
dated 18.01.2018 is in accordance with law and deserves to be upheld and
the present petition being meritless deserves to be dismissed for the reasons
detailed herein after.
9. As has been stated in the earlier part of the present order, the
present petitioners, who are the tenant/Judgement Debtor and the widow of
the sub tenant/Judgement Debtor, have made every endeavour to hold on to
the illegal possession of the premises in question inspite of having suffered
an eviction order dated 05.02.2013 which had been upheld up to the High
Court and has attained finality and the S.L.P filed by the petitioners was
withdrawn without curing defects. The said aspect is apparent from the
following.
10. On 20.10.2001, the respondents no.1 and 2 i.e. Elizabeth and
Sh. Kundan Lal Gill had filed a petition for ejectment of Vinod Kumar-
petitioner no.1 and Anil Kumar, husband of petitioner no.2 from the
premises in question. In para 1 of the said eviction petition, it was
specifically stated that respondent no.1 herein had appointed respondent
no.2 herein as her Attorney and the said respondent no.2 was authorized to
let out the premises and to receive rent or to take appropriate legal action
CR-2378-2020(O&M)
including that of ejectment, recovery of rent etc. It was further specifically
averred that respondent no.2 herein had let out the shop to the present
petitioner no.1 since 15.06.1993 vide Rent Note dated 11.06.1993. The head
note as well as para 1 of the Rent Petition, which is relevant, is reproduced
hereunder:-
“1. Ms. Elizabath d/o Shri Sadiq Masih, r/o V.P.O Gaggal,
Tehsil and District Kangra (H.P.)
2. Sh. Kundan Lal Gill s/o Shri Samual, resident of Batala.
XXX XXX XXX
1. That, the building of which the above said shop
and the rooms in dispute, as detailed in the heading of the
petition are part, is owned by petitioner no.1, who has
appointed petitioner no.2 as her attorney and has authorized
him to rent out the same, receive its rent or take appropriate
legal actions such like ejectment, recovery or rent etc. as per
the exigencies of the situation. The petitioner no.2 has left out
the said shop and the rooms in dispute to the respondent no.1
since 15.6.1993 vide rent note dated 11.6.1993 as executed by
the respondent no.1 in their favour for business purpose.”
11. The eviction was sought on several grounds including sub
letting and arrears of rent. It was the case of respondents no.1 and 2 herein
that petitioner no.1 had sublet the premises to the husband of petitioner
no.2.
12. It is not in dispute that vide judgement dated 05.02.2013
(Annexure P-3), the ejectment petition filed by respondents no.1 and 2 was
allowed on the ground of sub tenancy and the tenant/sub tenant were
directed to vacate the premises within a period of two months from the date
of order. A perusal of the said judgement dated 05.02.2013 would show
CR-2378-2020(O&M)
that it was the stand of the present petitioner no.1 that respondent no.2
herein was an Attorney to respondent no.1 and respondent no.2 had received
the rent as an Attorney up to 01.04.1999 and had executed the receipts up to
01.04.1999. Even the cross-examination of respondent no.2 Kundan Lal
Gill was also considered by the Rent Controller, wherein on behalf of the
present petitioner no.1, the respondent no.2 was confronted with a receipt
dated 01.04.1999 to which the said Kundan Lal had identified his signatures
and the said receipt was exhibited as Ex.R-1. The relevant portion of para 5
and para 17 of the judgement dated 05.02.2013 of the Rent Controller,
wherein the above said two aspects have been mentioned, is reproduced
hereunder:-
“5. On being put to the notice, respondents appeared
and filed a detailed written reply to the application moved by
the applicants. Factum of tenancy has been admitted by the
applicants and respondents. Meaning thereby that relationship
of landlord and tenant between applicants and respondents has
been admitted.
Further it has been contended by the respondents that
applicant no.2 had already received the rent as power of
attorney of applicant no.1 upto 1.4.1999. He further executed
receipts of rent upto 1.4.1999.
17. XXX XXX
During the course of cross-examination the witness
Kundan Lal was confronted with the certified copy of receipt
dated 1.4.1999 on which he identified his signatures and same
was proved on record as Ex.R1. Now in order to decide the
controversy it would be imperative to reproduce the contents of
receipt dated 1.4.1999 (Ex.R1) as follows:
“Received Rs.13,500/- on account of rent from Vinod
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Kumar son of Ramesh Chand for a period from 1.8.1998 to
1.4.1999.”
13. Importantly, it would be relevant to mention that in the entire
proceedings, neither any plea was taken that respondent no.1 Elizabeth was
a non-existent person nor it was stated that she had died nor the plea that
the respondent no.2 was not the Attorney of respondent no.1 was taken.
Rather, as is apparent from the stand of the present petitioner no.1, the
respondent no.2 was stated to be an Attorney of respondent no.1. The said
judgement was upheld by the Appellate Authority. Petitioner no.1 Vinod
Kumar had filed CR-39-2016 which had been dismissed by the Coordinate
Bench of this Court vide order dated 04.07.2016 (Annexure P-4). On a
pointed query raised by this Court, it has been fairly stated by the learned
counsel for the petitioners that the plea with respect to the said Elizabeth
being a non-existent person or she having died, had not been taken up either
before the Appellate Authority or before the High Court vide which the
revision petition filed by the petitioners was dismissed vide order dated
04.07.2016. Thus, the petitioners have raised the said pleas for the first time
in the execution proceedings.
14. The petitioners had filed objections dated 13.10.2016 in the
execution proceedings and in the said objections, it had been stated that the
execution proceedings be kept in abeyance till the outcome of the S.L.P
filed on 23.09.2016 vide Diary No.32235 of 2016. As has been brought to
the notice of this Court by the learned counsel for the respondents, the S.L.P
had been filed by the petitioner no.1 in which certain defects were there and
the said defects were never cured and a letter for withdrawal of the same
CR-2378-2020(O&M)
was filed on behalf of the petitioner no.1, instead of curing the defects and
vide order dated 12.09.2017, the said S.L.P was withdrawn. The order dated
12.09.2017 passed in S.L.P filed vide Diary No.32235 of 2016 has been
taken on record as Mark A and is reproduced hereunder:-
“SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
BEFORE THE REGISTRAR MR. SANJAY PARIHAR
IA 69061/2017, in Petition(s) for Special Leave to Appeal (C)D.
No. 32235/2016
VINOD KUMAR Petitioner(s)
VERSUS
ELIZABATH Respondent (s)
(IA No. 69061/2017-WITHDRAWL OF CASE)
Date: 12-09-2017 These matters were called on for hearing today.
For Petitioner (s) Mr.B.P.Singh Dhakray, Adv.
Mr.Kailash Chand, AOR
For Respondent(s)
UPON hearing the counsel the Court made the following
ORDER
Ld. Counsel for the petitioner has filed a letter for the
withdrawal of the instant petition instead of curing the defects. Since, the
petition has not been registered as yet, therefore, the same is permitted to
be withdrawn.
Sd/-
SANJAY PARIHAR
REGISTRAR”
15. It is, thus, apparent that the order of eviction passed in the year
2013 had attained finality and the petitioners did not even choose to pursue
their S.L.P. The objection taken by the petitioners to adjourn the execution
CR-2378-2020(O&M)
proceedings on the ground of filing of the S.L.P, thus, apparently were only
to gain time and to delay the proceedings, as the defects in the said S.L.P
were never cured. Once the pleas with respect to the respondent no.1
Elizabeth being a non-existent person/not alive or the respondent no.2 not
being the authorized Attorney were never taken up before the Rent
Controller, Appellate Authority, or before the High Court while laying a
challenge to the eviction order, then it was not open to the petitioners, who
are Judgement Debtor/widow of Judgement Debtor, to raise the said issues
for the first time in the execution proceedings, so as to start another trial and
thus endlessly delay the execution proceedings, which is in the teeth of the
direction given by the Hon'ble Supreme Court in the case of Periyammal
(Dead) and others Vs. Rajamani and another reported as 2025 SCC
Online SC 507, in which the Executing Courts have been directed to
dispose of the execution proceedings within six months.
16. Further, a perusal of the impugned order dated 18.01.2018, vide
which the objections filed by the petitioners were dismissed, would show
that in para 4, it was specifically noticed that only objection which was
raised by the Judgement Debtors during the course of arguments, was, that
the decree under execution was under challenge and the same cannot be
enforced. It is argued by learned counsel for the respondents that the
petitioners are seeking to raise those objections which were never pressed
before the Executing Court. The observations made in the said order
recording the fact that the only objection raised by the Judgement Debtor
was the one which has been noticed in para 4, is to be taken as correct, more
CR-2378-2020(O&M)
so when the present petitioners have not filed any review application before
the Executing Court stating that the other objections were also pressed
before the Executing Court. The sole objection pressed by the petitioners
was rightly rejected by the Executing Court by observing that the judgement
and decree dated 05.03.2013 has been upheld up to the High Court.
Moreover, the S.L.P filed by the petitioner no.1 was never got listed and the
petition was withdrawn on 12.09.2017 without curing defects. Thus, on the
said ground also, the petitioners are estopped from raising the objections, as
raised before this Court.
17. Even in case the objections raised by the petitioners before this
Court to the effect that the respondent no.1 is a non-existent person or is
dead is considered on merits, it is relevant to note that the said objections
are meritless and frivolous. A perusal of para 17 of the objection petition
dated 13.10.2016 (Annexure P-9), wherein the said objections have been
raised, would clearly show that the petitioners themselves are not sure as to
whether the respondent no.1 is alive or not. No Death Certificate of the
respondent no.1 has been produced on record. It is apparent that the
petitioners are wanting a roving inquiry to be conducted so as to delay the
execution proceedings. In the civil revision which was dismissed by the
High Court in the year 2016, the said arguments were never raised but in the
objections filed in the same year i.e. in the year 2016 to the execution
proceedings, the said objections have been raised for the first time, which
clearly show the malafide intent on the part of the petitioners. A perusal of
the reply dated 17.07.2017 filed by the respondents to the said objection
CR-2378-2020(O&M)
petition clearly shows that it had been specifically stated that the said
Elizabeth had been residing in U.S.A since long, along with her sons and
she had given a Power of Attorney in favour of respondent no.2 which was
registered as per law and further the said Elizabeth had sent a fresh Power of
Attorney and an affidavit in favour of decree holder i.e. respondent no.2 and
also sent a bank statement, which also clearly shows that she was alive. The
relevant portion of the said reply is reproduced herein under:-
“5.That the issuance of notice by the counsel
for the respondent to Mrs. Elizabeth at the address in District
Kangra is a result of collusion with the local post man and the
fact is well known to the respondents that she has been residing
in USA since long along with her sons. In this direction, the
applicant no.1 Mrs. Elizabeth has given a Power of attorney
in favour of the applicant no.2 which was registered with the
registrar as per law. The contention raised by the J.D. that the
POA is an unregistered document is totally wrong and denied
with vehemence. Moreover no such plea was ever raised by the
J.Ds earlier. It is further submitted that the D.H. Elizabeth has
further sent a fresh POA and an affidavit in favour of the D.H.
no.2 which has been attested by the proper authority. She has
also sent a copy of her passport. Copies of all the documents
are attached herewith.
6. The D.H. attaches herewith a copy of the bank statement of
D.H. no. 1 which clearly states that the a/c is live. The
respondents J.D. have not placed any document where from it
can be presumed that Elizabeth has died.”
18. In the said reply, it has also been specifically stated in para 14
of the preliminary objections that the earlier objection filed by the
Judgement Debtor had been dismissed on 16.08.2016. All the zimni orders
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of the Executing Court have not been produced before this Court to rebut
the said objection raised on behalf of the respondents. In para 17 of the
reply on merits, it was specifically mentioned that the Power of Attorney
executed in the year 1986 was a registered document and that the certified
copy of the bank statement showing that the respondent no.1 was alive and
was residing in U.S.A along with her sons and also fresh affidavit duly
attested by the competent authority in favour of respondent no.2, was also
attached.
19. The petitioners in order to further delay the proceedings, had
filed an appeal against the order dated 18.01.2018 vide which the objections
filed by the petitioners had been dismissed, which was not maintainable but
was initially entertained by the First Appellate Court. Even in the said
proceedings, the respondents had produced an affidavit of Elizabeth, which
has been handed over to the Court by the learned counsel for the
respondents during the course of arguments and has not been disputed by
the counsel for the petitioners and has been taken on record as Mark B. The
relevant portion of the same is reproduced hereunder:-
“AFFIDAVIT
I, Elizabeth d/o late Sh. Sadiq Masih r/o village Gaggal,
Tehsil and Distt. Kangra (H.P.) India-presently residing at 3582
Sentinel Court Hayward, California, 94542 U.S.A- do hereby
solemnly affirm and declare under Oath the following:-
I am a Senior Citizen of U.S.A, aged under 77 years old and I am
very much alive. There is NO doubt whether I am alive or not; this
Affidavit is a PROOF of that I am alive. I had already furnished an
Affidavit on 13/04/2017 duly attested which is already in the court
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records.
2. I am the owner of property bearing No.B-12/2, Cinema Road,
Batala, Distt. Gurdaspur, Punjab, India. As mentioned above, I am a
permanent resident of U.S.A (US Citizen); and therefore, I am unable
to look after my above mentioned property; hence I have given the
General Power of Attorney Wasika No.53, dated 5/5/1986, duly
registered by Registrar Dharamshala (H.P) to Mr. Kundan Lal Gill,
s/o late Sh. Samuel Gill r/o Kahnuwan Road, Near Methodist School,
Batala, Distt. Gurdaspur, Punjab, India.
3. That, said General Power of Attorney dated: 5/5/1986 is still in
force and will remain in force FOREVER. I have NOT cancelled said
General Power of Attorney, and confirm that the said General Power
of Attorney is Genuine, Legal, and Binding one, and the terms and
conditions of the said General Power of Attorney are still in force
and intact and will remain in force Forever.
4. That, I have a Bank Account with Punjab National Bank, branch
Gaggal (H.P), account number: 0678000100063207. I operate this
account from U.S.A and whereby I am helping Ranjeet Masih (my
nephew) through this account each month, who also has an account
with the same Punjab National Bank, branch Gaggal (H.P). I do visit
my parental home in Gaggal sometimes; my last visit was in the year
2010.
I am furnishing this Affidavit today on 4th day of June-2018.”
20. A perusal of the above affidavit would show that it has been
stated by the said respondent no.1 that she is a senior citizen of U.S.A and is
aged 77 years and is alive and that she had earlier furnished an affidavit on
13.04.2017 duly attested which is already on the court record. The fact that
she had executed a registered Power of Attorney was also reiterated and the
details of her bank account, which was being operated by her from U.S.A,
was also given. The other pages of the said affidavit show that the same has
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been duly notarized by Jehanzeb Khan, Notary Public, California (U.S.A). It
is, thus, apparent that the petitioners have raised completely frivolous
objections.
21. Reliance sought to be placed upon the filing of the appeal
against the impugned order dated 18.01.2018 and certain orders passed in
the said appeal, by the counsel for the petitioner, in fact, also goes against
the petitioners. Apart from the fact that the said appeal was not
maintainable, it would be relevant to note that a perusal of the zimni orders
(Annexures P-21) passed in the said appeal would show that an application
for mesne profit was filed by the respondents on 04.07.2019 in the said
proceedings and the present petitioners had taken time for filing reply to the
said application on 01.08.2019, 22.08.2019, 26.09.2019, 07.11.2019 and
ultimately it was only on 17.12.2019 that the reply to the application for
mesne profit was filed. Thereafter, before any order could be passed on the
said application for mesne profit, the petitioners withdrew the said appeal
vide order dated 05.03.2020 by making a statement that it was not within
their knowledge at the time of filing the appeal that the same was not
maintainable. The said fact is apparent from the statement made on
05.03.2022 by the petitioner no.1 along with his counsel. It is surprising
that still an argument is sought to be raised on the basis of the proceedings
in the said appeal, although, even as per their own understanding, the said
appeal was not maintainable and was withdrawn.
22. Further reliance sought to be placed upon the order passed by
the Coordinate Bench of this Court on 17.01.2019 vide which the
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petitioners had filed a civil revision challenging an interim order dated
06.09.2018 passed in the abovesaid non-maintainable appeal, also does not
further the case of the petitioners as the said revision petition was
withdrawn with liberty to file an application before the First Appellate
Court and although, an application was filed before the First Appellate
Court by the petitioners, but no benefit could be taken of the fact that the
said application was not decided, as it was the petitioners who had
withdrawn the said appeal as being not maintainable. Judgement of the
Andhra Pradesh High Court in case of A.B. Ramulu Vs. B. Yadigir Reddy,
1993 CivCC 487 relied upon by the learned counsel for petitioners, is based
on completely different facts. In the said case, the revision petition filed
had not arisen from execution proceedings and there was no final judgement
passed, whereas in the present revision petition, challenge has been made to
the order passed in the execution proceedings, after the judgement passed in
the eviction petition has attained finality. Further, the factum of the death of
the principal in the said case was not in dispute, whereas in the present case,
as has been observed hereinabove, the factum of death is not even remotely
proved nor is there any Death Certificate on record and rather the averments
made by the petitioners even in the objection petition filed in the execution
proceedings, as has been detailed herein above, would show that the
petitioners, who are Judgement Debtor/widow of Judgement Debtor, are
themselves not sure of the respondent no.1 being alive or not or being a
non-existent person. Thus, the very premise on which the judgement in case
of A.B. Ramulu (supra) has been passed, is completely different from the
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case in hand.
23. The falsity of the argument raised on behalf of the petitioners to
the effect that the respondent no.1 is a non-existent person is also apparent
from the fact that it was the case of the petitioner no.1 as well as the
husband of petitioner no.2, as has been noticed in paragraph 5 of the
judgement dated 05.02.2013 (Annexure P-3) that the respondent no.2 herein
had already received the rent as Attorney of respondent no.1 herein
(Elizabeth) upto 01.04.1999. The said stand of the present petitioners
recorded in paragraph 5 of the order of the Rent Controller has not been
shown to be incorrect or perverse. From the above said, it is apparent that it
was admitted by the petitioner no.1 and the husband of petitioner no.2 that
respondent no.2 herein was an Attorney of respondent no.1 (Elizabeth) and
thus the plea of the petitioners taken for the first time in the execution
proceedings to the effect that the said Elizabeth is a non-existent person, is
apparently false.
24. By raising frivolous objections, the petitioners have been able
to hold on to the possession of the premises in question, inspite of the
eviction order having been passed in the year 2013, which had attained
finality, without even paying rent since November, 2019. It is the case of
the respondents that the present market rent of the premises in question is
Rs.30,000/- per month. On account of the conduct of the petitioners, this
Court was inclined to direct the petitioners to pay rent/mesne profit since
November, 2019, but has thought it appropriate to dismiss the present
revision petition while granting liberty to the respondents to institute
CR-2378-2020(O&M)
appropriate proceedings for claiming rent/mesne profit/compensation, in
accordance with law.
25. Keeping in view the above said facts and circumstances, the
impugned order dated 18.01.2018 (Annexure P-11), is upheld and the
present revision petition is dismissed.
(VIKAS BAHL)
JUDGE
09.12.2025
lucky
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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