Manoj Kumar Gupta, J. - (1.) The petitioner has challenged the orders dated 1.3.2019, 18.1.2019 and 23.5.2012 passed by the Prescribed Authority in PA Execution Case No.32 of 2006 arising out of PA Case No.47 of 1995.
(2.) The main order which is under challenge amongst the above, is dated 23.5.2012, which disposes of an application 40-C filed by the petitioner. It was alleged that the decree holder had died during pendency of execution case, therefore the execution application should be dismissed as having become infructuous. The execution proceedings are for execution of the release order passed in Appeal No.654 of 1997 dated 16.5.1998. Under the said order, the need of the landlord was held to be genuine and bonafide. Aggrieved by the said order, the petitioner filed Writ Petition No.19148 of 1998 before this Court which was dismissed on 3.8.2006. The said order attained finality and was put to execution. During pendency of the execution proceedings, the landlord died. The heirs prosecuted the execution case upon which objection was raised by the petitioner that the landlord, for whose need the shop was released, having died, the execution proceedings should be dismissed as infructuous. The executing court has held that the release order had attained finality with the dismissal of the writ petition filed by the petitioner before this Court by order dated 3.8.2006. Consequently, the said order is fully executable and the execution proceedings would not render infructuous upon death of the landlord.
(3.) Counsel for the petitioner submitted that since the premises was released solely on the ground of bonafide need of the landlord, who had died, therefore the execution proceedings had been rendered infructuous. In support of his submission he has placed reliance on a judgement of learned single judge of this Court in Smt. Dhanwanti Devi vs. Sri Rama Shankar Prasad and another,1982 ARC 747. In that case, the assignee of the original landlord had applied for execution of release order passed in favour of the assignor. In context of an assignee, the court held that under Section 23, he will have no right to execute the release order passed in favour of his assignor, as it would otherwise frustrate the entire scheme of the Act. The relevant observations made in this regard are extracted below :- "..............It is obvious that if the assignee is permitted to evict the tenant under section 23 on the strength of the order passed in favour of the assignor, the aforesaid provisions will be attracted at once and the assignee would be liable to be evicted. For, where the assignee is a person different from the person for whose occupation according to the landlord's representation the building was required, the landlord would be deemed to have put or caused to be put into occupation a person different from the individual or individuals for whose occupation the landlord had sought and obtained the order of eviction under section 21. The landlord would be deemed under such circumstances, in any case, to have omitted to occupy it in pursuance of the order passed under section 21, thereby inviting, or throwing it open to the Prescribed Authority to take action against the assignee under section 24. 12. Where such is the inevitable consequence of the assignee being permitted to occupy the accommodation under section 23, it seems difficult to uphold the contention that in spite of that result the assignee would still have the right to apply under section 23 for enforcement of the order of eviction. The entire process of putting the assignee into possession under section 23 would be an exercise in futility.";