Satish Chand v. Raj Kumar

RAJIV SAHAI ENDLAW, J. SEPTEMBER 17, 2018 'pp/bs'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 17th September, 2018. + SATISH CHAND ..... Appellant Through: Mr. Ankit Jain with Mr. Sarvesh Rai and Mr. Siddhant Nath, Advs. Versus RAJ KUMAR ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Notice issued to the respondent remains unserved with the endorsement 'left the premises'. 2. The counsel for the appellant states that the appellant is not aware of any other address of the respondent. 3. Considering the facts of the present appeal, the same is believable. 4. This Execution First Appeal impugns the order [dated 15th February, 2018 in Ex. Civil No.1267/2017 of the Court of the Additional District Judge-04 (South-West)] of dismissal of application for execution filed by the appellant. 5. The appeal came up first before this Court on 18th May, 2018 when notice thereof was ordered to be issued. The respondent as aforesaid, remains unserved. 6. The counsel for the appellant has been heard and the copies of the relevant Trial Court record annexed to the memorandum of appeal perused. 7. The appellant instituted the suit, from application for execution of decree wherein this Execution First Appeal arises, inter alia for recovery of possession of property No.1677-C, Todar Mal Colony, Prem Nagar, Najafgarh, Delhi – 110 043, pleading (i) that the appellant/plaintiff was a tenant under one Raghunath Singh in the aforesaid property at a monthly rent of Rs.1,700/-; (ii) the appellant/plaintiff was carrying on his business from the said premises; (iii) the respondent/defendant was a tenant under the same Raghunath Singh in another shop in the same property; and, (iv) that the respondent/defendant forcibly took possession of the shop of the appellant/plaintiff also. Accordingly, the suit for recovery of possession under Section 6 of the Specific Relief Act, 1963 was filed. 8. The respondent/defendant contested the aforesaid suit. 9. However the Suit Court, vide judgment dated 19th November, 2016 allowed the suit of the appellant/plaintiff and passed a decree in favour of the appellant/plaintiff and against the said Raghunath Singh of recovery of possession of shop in the tenancy of the appellant/plaintiff. 10. The counsel for the appellant/plaintiff, on enquiry states that no appeal was preferred against the aforesaid judgment. 11. The appellant/plaintiff applied for execution of the decree aforesaid and the respondent/defendant filed objections to such execution pleading that he had as far back as in the year 2016 handed over possession of the shop, for recovery of possession whereof decree was passed, to Raghunath Singh. Vide the impugned order dated 15th February, 2018, the objections of respondent/defendant have been allowed and the execution application of appellant/plaintiff has been dismissed. 12. The Executing Court has held, that once the respondent/defendant/judgment debtor had handed over possession to Raghunath Singh, the remedy if any of the appellant/plaintiff was against the said Raghunath Singh and not under the decree against the respondent/defendant. 13. The counsel for the appellant/plaintiff also admits that the respondent/defendant left the premises in the year 2016 and on enquiry states that Raghunath Singh is now in possession of the property. 14. It is in the aforesaid scenario that it has been observed hereinabove that the statement of the counsel for the appellant/plaintiff that the appellant/plaintiff is not aware of any other address of the respondent/defendant, is believable. The respondent/defendant admittedly is now left with no concern with the premises with respect to which decree was passed and would not be interested in defending the same. 15. Having found it mentioned in the judgment in the suit, that Raghunath Singh aforesaid had also filed proceedings for ejectment of the appellant/plaintiff from the premises, for recovery of possession of which the appellant had sued the respondent/defendant, the fate of