JUDGMENT
Surjit Singh, J.
1. Heard. Tulsi Ram respondent, hereinafter called ‘DH’, was inducted as tenant in certain premises, situate in Shimla Town, by respondents Kuldeep Kumar, Sudarshna Devi, one Vidya Devi (now deceased) and several other persons. In April, 1987, he was illegally and forcibly dispossessed by the landlords. A suit was filed by Tulsi Ram, under Section 6 of the Specific Reliefs Act, to recover the possession. That came to be decreed on 25.5.1991. The landlords, against whom the decree was passed, filed a Revision in this Court, challenging the decree passed in favour of Tulsi Ram. The revision was dismissed in 2001. In the meanwhile, the landlords filed a suit, based on title, sometime in the year 1992, alleging that Tulsi Ram had surrendered the tenancy. That suit was dismissed. Appeal filed against the decree of dismissal of their suit was also dismissed.
2. In 1996, Tulsi Ram filed Execution Petition seeking the execution of the decree passed in his favour in the suit, under Section 6 of the Specific Reliefs Act. All the JDs, including the present respondents and deceased Vidya Devi, were made party to that Execution Petition. The present appellant filed objections, under Order 21 Rules 97, 98, 99 and 101, CPC, claiming that he had been inducted as tenant in the premises in question by Vidya Devi, deceased JD, on 1st June, 1991. It may be stated here that the appellant (Tilak Raj) is the husband of one of the JDs, namely Sudarshna Devi and the son-in-law of deceased Vidya Devi, who, according to him, inducted him as tenant. Executing Court dismissed the objections. Appeal was filed by the appellant before the District Judge. The learned Additional District Judge, to whom the appeal was assigned, has dismissed the same, vide judgment, dated 10.1.2006. Now, the appellant has approached this Court by filing the second appeal.
3. An objection was raised by the learned Counsel for the respondent that the order of the executing Court, as affirmed by the Additional District Judge, being not a decree, second appeal is not maintainable. Rule 103 of Order 21 says that an order passed under Rule 98 or 100 of Order 21 is to be deemed to be a decree, inter alia, for the purpose of filing appeal. A Single Bench of this Court in Rajinder Kaur alias Kamal Preet v. K.R. Aggarwal and Anr. and a connected matter 2000(2) Shim. L.C. 185, interpreting the provisions of Rules 98, 100 and 103 of Order 21, has held that an order passed under Rule 98 or 100 is a decree and the appeal is maintainable under Rule 103. In view of the above stated position, the objection raised by the learned Counsel for the respondent regarding maintainability of the appeal is overruled.
4. Now, turning to the facts, admittedly, the appellant is husband of one JD and son-in-law of another JD, and looking to this close relationship of the appellant with two of the JDs, there cannot be any manner of doubt that the plea of tenancy has been cooked-up with a view to frustrating and defeating the decree passed in favour of respondent Tilak Raj. In any case, once there is a finding by the Civil Court that Tulsi Ram respondent had been illegally dispossessed by the JDs and JDs’ own suit claiming that the tenancy had been surrendered by Tulsi Ram stands dismissed with the finding that the tenancy had not been surrendered, the JDs could not have lawfully inducted any person as tenant in the premises in question, as their own possession was illegal and unlawful vis-a-vis the DH. The decree, thus, binds not only the JDs but also those, including the present appellant, who might have been put in possession of the premises, in question, during the pendency of the matter or after the passing of the decree.
5. Learned Counsel for the appellant relied upon two judgments, one of the Hon’ble Supreme Court and Anr. of Madhya Pradesh High Court, and submitted that the tenancy created during the pendency of the litigation or even after the passing of the decree is not void. The citations are: Dev Raj Dogra and Ors. v. Gyan Chand Jain and Ors. and Ramjidas v. Laxmi Kumar and Ors. . The facts in both the judgments, relied upon by the learned Counsel, were different. In the case decided by the Hon’ble Supreme Court tenancy was created by the mortgagor, who was in possession, because the mortgage was equitable. No doubt, the tenancy was created after a consent decree for money, i.e. the mortgage debt had been passed in favour of the mortgagee, but the fact remained that the mortgagor was in lawful possession. Lateron, the property was put to Court auction in execution of the decree. The auction-purchaser wanted to recover the possession from the tenant inducted by the mortgagor. It was under these circumstances that the Hon’ble Supreme Court held that the tenancy created by the mortgagor was not void.
6. In second precedent relied upon by the learned Counsel for the appellant, which is of Madhya Pradesh High Court, during the pendency of the partition suit, one of the co-owners had created a tenancy. Thereafter, partition of the property took place and decree separating the shares of the co-owners was passed. The co-owner, to whom the leased property was allotted, pursuant to the final decree, wanted to recover the property from the tenant. He alleged that the lease was void. The Hon’ble High Court rejected the plea holding that when the lease was created, the property had not been separated by metes and bounds, but only a preliminary decree was there and, therefore, every co-owner could have created tenancy to the extent of his share.
7. It was then argued by the learned Counsel representing the appellant that the Executing Court did not afford any opportunity to the appellant to prove his objections inspite of the fact that the appellant did not have a right to file a fresh suit but get the objections adjudicated, under Rules 98 and 100 of Order 21, CPC, which were required to be adjudicated in the manner prescribed for trial of suit. The contention has been noticed only to be rejected. When, prima facie, the objections are unsustainable there was hardly any need or occasion for the Executing Court to try them. In this view of the matter, I find support from a judgment of the Hon’ble Supreme Court in Kazi Akeel Ahmed v. Ibrahim and Anr. 1997 (Suppl.) Civil Court Cases 330 (S.C.).
8. In view of the above stated position, the appeal is dismissed.
CMP No. 85/2006
Dismissed. Interim order, dated 22.2.2006, passed on the application, is vacated.