D. L. MEHTA, J. - (1.) IN both these revision petitions common question of law and facts arise, as such, both are being disposed of by a common judgment.
(2.) SHRI Nathmal instituted a suit in the court of Munsiff, Ajmer City and prayed that the defendant, Onkar Lal and his son Ghasi Lal should be ejected from the shop. Ejectment decree was passed on 18. 9. 61. Appeal was preferred against the ejectment decree which was also dismissed on 13. 1. 67. Second appeal was preferred before this court. Plaintiff Nathmal applied for the execution of the decree. According to the present petitioners Shri Pukhraj and others, the possession of the first floor was taken in execution of the decree on 21. 7. 63. However, this fact is denied by the opposite party. On 22nd March 1964 defendants handed over the possession of the ground floor in satisfaction of the decree. During the pendency of the second appeal Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was amended in the year 1965. In the light of the amended provisions of the said Act, the defendant-appellant was allowed to deposit the arrears of rent and the decree passed by the trial court was set aside. It will not be out of place here to mention that it is alleged that a plea was raised before the trial court that compromise was entered into between the parties on 22-3-64. However, this plea was not accepted by the Court below. Being aggrieved with the order dated 16. 5. 66, holding that there was no compromise appeal was preferred which was also dismissed on 23rd December 1966. During the pendency of the suit the rent was determined on 10. 12. 65 and the same was deposited by the defendant in the court as such, the plaintiff's suit was dismissed on 13. 8. 66. Directions were given in the decree of the trial court while dismissing the suit that the shop, the possession of the premises which has been taken over by the plaintiff-decree-holder should be restored to the defendant under sec. 144 C. P. C. Appeal was preferred against the decree dated, 13. 8. 66 which was also dismissed. Second appeal was preferred before this court and the same was also dismissed on 18 9. 72. Application was moved by Onkar Lal and Gyarsi Lal for the execution of the decree dated 13-8-66 for possession. Objections were filed by the plaintiff and the same were decided on 3. 4. 76. The order dated 3. 4. 76 is very important order in which learned Munsiff he'd that possession of the first floor was not envisaged by the decree and the decree only provided for the possession of the suit shop; and that even though the possession of the first floor was handed over it was not in consequence of the decree but independent of the decree. Learned Munsiff also held as under :- "in the result, the objections of the plaintiff judgment debtor are upheld as above. Therefore, the defendant decree holder is directed to take step for necessary amendments in the execution petition otherwise, his application for execution of the decree is unable to be rejected. " During the course of passing of restitution order decree for possession Laxmi Narain was inducted as a tenant. He raised objections and also obstructed the execution of the said decree. Objections were rejected on 4. 7. 78 Laxmi Narain contested upto this Court. However, he could not succeed. In the execution of the decree for restitution of the possession, the possession of the ground floor was restored on 28. 1. 83. Second application was moved on 17th March 1983 and it was prayed therein that the possession of the first floor should also be restored as it was taken in execution of the decree which has been set aside. Trial Court considered the submissions made by both the parties and held that the points stand decided vide order dated 3. 12. 76 and no further order can be passed and the order dated 3. 4. 76 will stand and the principles of resjudication will apply. Being aggrieved with the finding dated 2. 6. 83, this revision petition has been preferred by Pukhraj and others against Ramwati and others. Mr. Kishan Gopal has preferred revision petition against Pukhraj and others being aggrieved with the order of the trial court dated, 24. 1. 83. Application was moved by the plaintiff that after the death of the original tenant the tenancy comes to an end. It was submitted that the sons of the deceased tenant were minor at the relevant time and were not doing the business of Halwai with their father. A query was made during the course of argument whether the sons are doing the business of Halwai today ? It was answered by the counsel for the plaintiff that they are doing the business of Halwai but not in this very shop, but they are selling the sweets and other products on the Thelas. Plaintiff instituted a suit against the defendant and, in the plaint it was mentioned that the defendants be ejected from the shop, Teen khandi which has been let out to them. Thus, the specification of the shop given in the plaint is that the shop is Teen Khandi. I have also gone through the decree passed in the original civil suit No. 386/60 in the year 1963 and in that decree also the same specification has been given as mentioned in the plaint, that the shop is Teen Khandi. There is no reference in the plaint or in the decree which was passed in the year 1963 about the first floor. After the filing of the application for the restitution of the possession under section 144, objection was raised by the plaintiff that the petition has been moved by only one person and it is not maintainable. During the pendency of the objections other decree-holders appointed Mr. R. N. Agrawal as their Advocate and he submitted his power on 24. 8. 84. Application under section 151 C. P. C. was also moved by the legal representatives of the deceased, Shri Gyarsi Lal that they accord consent to the execution petition which has been filed by Onkar Lal, one of the decree holder. It was also submitted that the action taken by Shri Onkar Lal in the the above execution petition will be binding upon them and Shri Onkar Lal can give full discharge to the decree and they will raise no objection against the same. Thus, it was submitted by implication that Onkar Lal has submitted the execution petition on behalf of all the decree holders and for the benefit of the decree-holders. Mr. B. P. Agrawal appearing on behalf of the petitioners Pukhraj and others, submitted that photo copy of the proceedings relating to the year 1963 was applied. He has produced the copy of the application for the execution which was filed before the trial court. Execution petition was registered as Execution Petition No. 102/63. In the said application, the plaintiff-decree holders submitted that-
(3.) ;g fd dctk ckeqftc fm h fm hnkj dks en;quku ls fnyk;k tk;** He submits that in pursuance of the said application the warrant was issued and the possession of the first floor was delivered to the plaintiff-decree-holders. He submits that because of the weeding of the records, the proceedings of the execution and the report of the Nazir who went on the spot is not available. He submits that on 17-5-83 Pukhraj and others submitted an application and they have mentioned therein about the delivery of the possession of the first floor. Mr. Agrawal has also submitted that in the memo of appeal filed by the present non-petitioners who are the legal representatives of Nathmal, it has been mentioned that on 21-7-63 appellant went with the warrant for the possession. It was also stated therein that the respondent-dependant vacated the portion of the property on the first floor and requested to vacate the shop. Mr. Mehta appearing on behalf of the plaintiff submitted that the first floor was not vacated by them in execution of the decree, but, it was an independent act under a different agreement as the first floor was not let out to them and it has nothing to do with the decree. Mr. Agrawal submits that on 21-5-86 his client filed an application in the Court and submitted that on 21-7-63 the possession of the part of the property consisting of the first floor was handed over to the plaintiff. However, the demand made by the petitioner cannot be used in his favour. Mr. Agrawal also invited my attention to the copy of the judgment dated 16-2-67 passed by the Senior Civil Judge, Ajmer. He submits that in the said judgment there is a reference that the defendant was evicted from the first floor. On the other hand, Mr. Mehta appearing on behalf of the plaintiff submits that on 30th July 1966 an application was mpve4 by the defendant and in the said application it was stated by the defendant petitioners that they were evicted and the plaintiff has taken the possession in execution of the decree on 22-3-64. A prayer was also made in the said application that the possession of the property referred above may be delivered. Mr. Mehta submits that in the year 1966 when the first application under section 144 was moved prayer was made only in relation to the ground floor knowing it that they have been ejected only from the ground floor and not from the first floor. No case was made out even in the year 1966 when the first application was moved for possession of the first floor. Mr. Mehta submits that by implication the petitioner-defendant admits that they were not ejected in pursuance of this decree from the first floor. I have heard rival contentions of both the parties and it is necessary for me to determine (i) whether the impugned order passed under section 144 can be treated as a decree under section 2 (2), (ii) whether the order dated 3rd April 1976 will deprive the defendant-petitioner from agitating his point again and it will fall within the purview of the principles of resjudicata. Section 2 (2) C. P. C. reads as under : - "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. " It shall be deemed to include the rejection of a plaint and the determination of any question within (" " ") Section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. ;