J.S. Trivedi, J. - (1.) DEFENDANT -Appellant in execution of a money decree purchased the property including the accommodation in suit. On the basis of a sale certificate Defendant -Appellant sought possession. Objections were filed by the sons of the judgment -debtors and during the pendency of the objections the delivery of possession remained stayed. Lastly an application Under Order 21 Rule 97 Code of Civil Procedure was moved. When the Amin went to deliver possession on 4 -4 -63 Mahendra Kumar, Plaintiff -Respondent No. 1 obstructed the delivery of possession alleging that he was in possession under an allotment order dated 8 -2 -61. His objection before the executing Court was also dismissed. The suit out of which this appeal arises was then filed by Mahendra Kumar for a declaration that he was in possession of the accommodation in dispute on the basis of an allotment order. Permanent injunction restraining the Defendant -Appellant from evicting him in execution of the decree was also sought. The suit was contested. The trial Court dismissed the suit. In appeal the lower appellate Court allowed the appeal hence this Second Civil Appeal.
(2.) LEARNED Counsel for the Appellant has contended that the allotment order was the result of fraud perpetuated by the son of the judgment -debtor. He has also contended that the Rent Control and Eviction Officer had no jurisdiction to allot the accommodation when the accommodation had neither fallen vacant nor was likely to have fallen vacant. Learned Counsel for the Respondent on the other hand has contended that after an order for delivery of possession was made the accommodation became liable o allotment on the ground of likely to lave fallen vacant. In support of his contention he has placed reliance on: Raman Das v. State of U.P., 1952 AWR 225, Chhotey Lal v. District Magistrate, 1952 AWR 506, Smt. Ram Katpari v. RC and EO, 1953 AWR 309, (sic) Lal v. RC and EO, 1953 AWR 540, Gunda v. State : AIR 1954 All 127, Lachmi Narain v. RC and EO, 1957 AWR 455, Mohd. Ishaq v. State Government of U.P., 1966 AWR 520, Mohd. Shuaul Islam v. RC and EO, 1968 AWR 141, Proprietor Agents v. Shamsher Bahadur, 1964 ALJ 752, Shitma Shanker Sharma v. RC and EO, 1967 AWR 229; Mahant Suryanand Giri v. Girdhari Lal, 1967 AWR 193 and Puran Chandra v. Rex, AIR 1951 All. 628. None of the cases referred and relied by the learned Counsel for the Respondent are to the point. The simple question for determination is whether where a landlord either voluntarily or in execution of a decree transfers an accommodation which is in his possession the accommodation shall be deemed to be vacant in the hands of the transferee. The purpose of the Rent Control and Eviction Act is to regulate the rent of the building and to protect the tenant from the harassment of the landlord. Where an accommodation in possession of a landlord is transferred to another person the other person enters into the accommodation as a landlord and the accommodation can on no account be deemed to be vacant. In the instant case so long as the decree is not executed the landlord cannot be deemed to have vacated the premises and the moment the decree is executed and the auction purchaser gets into possession the possession of the auctioner purchaser will be lawful and the accommodation would not be deemed to have fallen vacant. What is contemplated by the words "accommodation having fallen vacant" is that the accommodation is not intended to be used by the owner for his own purposes. It would be relevant to mention in this case that every obstacle was being placed by the judgment -debtors through their sons initially against the execution of the decree. After the judgment -debtors were unsuccessful, they through the Plaintiff who is no stranger than the son of one of the judgment -debtors applied for the allotment of the accommodation. The application which is paper No. 30 -Ga -1 on record was not only incomplete but lacked in material particulars It is mentioned in the application that the Appellant Mahendra Kumar had been in possession of the accommodation since all his life. There is nothing in the application to show how the house had fallen vacant.
(3.) FROM the record it appears that on 13 -1 -61 Mahendra Kumar, Plaintiff Respondent who is the son of Jai Prakash judgment -debtor had moved an application for allotment of the accommodation to the District Magistrate and the District Magistrate made the following endorsement: The Applicant is said to have been living in this house all his life and is not vacating it even now. It has probably been represented that he is vacating or his portion is vacant. The portion in his occupation since his forefathers' time may be allotted to him, if it does not conflict with any injunction of any superior Court.;