- (1.) SUDHIR Narain, J. The petitioner seeks writ of certiorari for quashing the order dated 22-1-1996 directing her to restore the possession of disputed property to respondent No. 3 and the order dated 13-2-1996 dismissing the revision by respondent No. 1 against the aforesaid order.
(2.) THE petitioner is landlady of House No. B-10, New Agra, Respondent No. 3 is the tenant of the house in question. THE petitioner filed Suit No. 4 of 1991 against respondent No. 3 for recovery of arrears of rent, ejectment and damages on the ground that he committed default in payment of arrears of rent and made material alteration in the building. THE Judge Small Causes Court decreed the suit on 20-1- 1995 on the finding that respondent No. 3 made material alteration in the building. THE version of the petitioner that he committed default in payment of arrears of rent was not accepted. Respondent No. 3 filed Revision No. 60 of 1995 in the Court of District Judge, Agra. THE District Judge while admitting the revision of respondent No. 3 granted stay order on 17-2-1995. THE order reads as under: "admit. Summon the record of trial court and fix 1-5-95 for hearing. 5c is application for staying the operation of the trial court. THE learned counsel for the respondent is also present and he has no objection to stay the operation if the appellant (revisionist) deposit the entire decretal amount. Operation of order and judgment in Revision shall remain stayed provided the entire decretal amount is paid within 15, days. " This order was passed in presence of the counsel for the petitioner and he had no objection to the stay of the operation of the decree passed by the trial court. THE revision was subsequently transferred to Special Judge (E. C. Act) Agra, respondent No. 4. After 17-2-1995 the next date fixed in the case was 1-5- 1995 and the case has been adjourned from time to time and is still pending. There was never any dispute before respondent No. 4 that respondent No. 3 did not comply with the conditional stay order by depositing the decretal amount within 15 days from the date of passing of the stay order on 17-2-1995. The petitioner filed an application for execution of the decree in the court of Additional Judge Small Causes Court, Agra on 22-8-1995 registered as Case No. 15 of 1995. In the execution application it was stated that the revision against the decree has been filed but in that revision no stay order has been granted. In the execution case the petitioner filed an affidavit dated 29- 8-1995. In the affidavit it was stated that Revision No. 66 of 1995 has been filed by the defendants which is pending in the Court of Special Judge (E. C. Act), Agra. In para 2 of the affidavit it was stated that the defendant/revisionist has not deposited any decretal amount nor any stay has been granted by the court. Respondent No. 2, relying upon the averments made in the affidavit, directed for delivery of possession. On 4th January, 1996 the Amin took possession of the house in question from respondent No. 3 arid delivered it to the petitioner. Respon dent No. 3 objected to the delivery of possession on the ground that there was an interim stay order passed by the District Judge, Agra and the same is still operating and he had complied with the conditional order. The Amin, however, did not accept his contention and delivered possession of the property in question from respondent No. 3 to the petitioner.
(3.) RESPONDENT No. 3 filed an application for restoration of possession before the executing court on the allegation that on 17-2-1995 the revisional court had granted interim stay order on the condition that respondent No. 3 deposits the entire decretal amount within 15 days and he had deposited the entire decretal amount within 15 days. He had submitted a tender on 21st February, 1995 and deposited the amount on 23rd February, 1995. The petitioner filed objection stating that the respondent No. 3 had not deposited the amount within 15 days. As no notice of such deposit has been given to the petitioner, the application for restoration of possession was liable to be rejected. RESPONDENT No. 2 held that respondent No. 3 had deposited the entire decretal amount within 15 days and had complied with the conditional order of stay. It was not obligatory on him to give notice of deposit to the petitioner. RESPONDENT No. 2 by order dated 22-1-1996 directed for restoration of possession of house in question to respondent No. 3. The petitioner filed revision against this order and the revision has been dismissed by respondent No. 1. The petitioner has assailed the finding recorded by respondents Nos. 1 and 2 that the respondent No. 3 complied with the conditional order passed by the District Judge on 17-2-1995 by depositing the decretal amount within 15 days from the date of order passed on 17-2-1995. Respondent No. 3 had submitted a tender for deposit ing the amount in the court. The Court had passed the tender on 21-2- 1995 and thereafter he deposited the amount in the bank in the name of the court and an endorsement was made by the bank on the said tender that the amount has been deposited. Respondent No. 3 filed the copy of the said tender bearing endorsement of the payment. The Court held that the entire decretal amount was paid within time. The petitioner in the writ petition has again disputed this fact. A counter affidavit has been filed on behalf of respondent No. 3. It has been stated that the court had passed tender on 21-2-1995 and the amount was to be deposited in the State Bank of India in the name of the court. The amount was deposited in the State Bank of India on 23-2-1995. A certificate of the bank has also been filed. A photostat copy of the tender containing endorsement of deposit has also been filed. This clear ly indicates that respondent No. 3 had deposited the entire decretal amount within time. There is no dispute that the amount deposited by respondent No. 3 did not cover the entire decretal amount.;