S.U.Khan - (1.) THIS is tenants' writ petition arising out of orders passed on petitioners' application under Section 47, C.P.C. The tenanted accommodation is in the form of shop on ground floor of House No. 77/153, Cooli Bazar, Kanpur, rent of which is Rs. 12 per month. Landlady Smt. Jamilunnisa, predecessor-in-interest of respondents No. 3 to 6 filed suit for eviction against the original tenant Athar Ali (who died during pendency of suit and was survived by petitioners) in respect of tenanted accommodation in the form of Original Suit No. 1719 of 1971. In the suit, petitioners filed written statement alleging therein that Smt. Jamilunnisa-the plaintiff had sold the property to Ghanshyam Das in 1959, who in turn sold the same to Sri M. Samad in 1965 and Sri M. Samad sold the same to Smt. Mustafai Begum through registered sale deed dated 12.8.1986. Smt. Mustafai Begum filed impleadment application in the suit, which was allowed. She also filed written statement. The suit was decreed ex parte on 27.1.1978.
(2.) SMT. Mustafai Begum neither filed any restoration application nor revision. Petitioners filed revision against the said order, being S.C.C. Revision No. 155 of 1978, which was dismissed on 18.7.1980 by IVth A.D.J., Kanpur. Thereafter, the decree was put in execution. Petitioners filed objections under Section 47, C.P.C. being Misc. Case No. 141/74 of 1984 before J.S.C.C., Kanpur. In the said objections, it was stated the Jamilunnisa had filed O. S. No. 37 of 1970, against Mustafai Begum for declaration of the sale deed in favour of Mustafai to be void, which was dismissed. Against the said judgment and decree First Appeal No. 484 of 1984, was filed. The said appeal is stated to be still pending before A.D.J., Kanpur. The suit was dismissed on 18.8.1980 by Ist Additional Civil Judge, Kanpur. The objections filed under Section 47, C.P.C. by the tenants-petitioners were rejected by Additional J.S.C.C., Kanpur Nagar on 20.4.1986. Against the said order S.C.C. Revision No. 42 of 1986 was filed, which was dismissed by VIIIth A.D.J., Kanpur Nagar on 4.5.1991, hence this writ petition. In V. Hucheswaran v. M/s. Madras Hardware Mart, AIR 2006 SC 50, it has been held that application for restitution under Section 144, C.P.C. is not maintainable on the ground of subsequent judgment. Similar principle will apply to application under Section 47, C.P.C. In Dhurandhar Prasad Singh v. Jai Prakash University, AIR 2001 SC 2552, it has been held that powers of executing court under Section 47, C.P.C. are very narrow and "the exercise of powers under Section 47 is microscopic and lies in a very narrow inspection hole". In P. V. Jose v. Kanickammal, AIR 2000 SC 2688, it has been held that if occupier of a property raises an objection in the suit that he is entitled to protection of Rent Act and the said objection is decided by the trial court against the objector, then the said decision becomes final and such objection cannot again be raised in execution. At this juncture reference may also be made to the authority of the Supreme Court in Vashu Deo v. Bal Kishan, AIR 2002 SC 569. In the said authority, it has been held that decree of eviction obtained by tenant against his sub-tenant does not become non est due to filing of a suit for eviction by the landlord against the chief tenant. In the said authority, three conditions to constitute eviction by title paramount so as to discharge the obligation of the tenant to put his lessor into possession have been laid down, which are as follows : "(i) the party evicting must have a good and present title to the property ; (ii) the tenant must have quitted or directly attorned to the paramount title holder against his Will ; (iii) either the landlord must be willing or be a consenting party to such direct attornment by his tenant to the paramount title holder or there must be an event, such as a change in law or passing of decree by a competent court, which would dispense with the need of consent or willingness on the part of the landlord and so bind him as would enable the tenant handing over possession or attorning in favour of the paramount title holder directly ; or, in other words, the paramount title holder must be armed with such legal process for eviction as cannot be lawfully resisted. (Para 12)"
(3.) THE said authority was followed in Om Prakash Gupta v. Ranbir B. Goyal, AIR 2002 SC 665. In view of the above authorities by the Supreme Court mere pendency of suit by paramount title holder is not sufficient. Appeal is also continuation of suit. In the instant case, suit of Jamilunnisa-the original landlady against Smt. Mustafai Begum was dismissed but appeal is still pending.;