STATE OF U P Vs. SUDHIR KUMAR

JUDGEMENT

(1.) ANJANI Kumar, J. These two writ petitions between the parties raise common question of fact and law, therefore, they are being disposes off by common judgment.

(2.) THAT an ex parte decree for eviction and arrears of rent was passed against the petitioner-tenant- defendant by the trial Court on 17-9-1997 in JSCC Suit No. 128 of 1994. Aggrieved thereby the petitioner preferred a time-barred revision before the revisional Court under Section 25 of the Provincial Small Cause Courts Act, 1887 the revisional Court by its order dated 11-4-2004 dismissed the application for condonation of delay and also dismissed the revision referred to above filed by the petitioner-tenant as barred by time. Aggrieved thereby the petitioner-tenant preferred a writ petition being writ petition No. 27589 of 2002. Initially this Court was pleased to pass an interim order dated 15-7-2002 directing the petitioner to pay the entire decretal amount. This order dated 15-7-2002 was modified by this Court vide its order dated 25-3-2004. Since the petitioner has not complied with the modified interim order dated 25-3-2004 and has not deposited the entire decretal amount due upto 29-2-2004 within one month of 25-3-2004 and have also further not paid rent to the respondent-landlord with effect from March, 2004 at the rate of Rs. 500/- per month in terms of the modified interim order dated 25-3-2004, the interim order saying the operation of the impugned order, stands vacated. The decree- holder of the Original Suit No. 128 of 1994 therefore filed a execution case which has been registered as Misc. Case No. 42 of 2004. The petitioner-tenant filed an objection under Section 47 of Code of Civil Procedure to the effect that the decree-holder themselves have filed an application under Section 21 (8) of U. P. Act No. 13 of 1972 which has been registered as P. A. Case No. 9 of 1994 before the Rent Control and Eviction Officer, Moradabad. In the application under Section 21 (8), which is still pending, the decree- holder has treated the petitioners as their tenant. In these circumstances the notice given by the landlord under Section 80 of the Code of Civil Procedure and under Section 106 of the Transfer of Property Act stood waived and the decree passed in the JSCC Suit No. 128 of 1994, the execution whereof is pending, has become unexecutable. In these circumstances, this execution case is liable to be dismissed. The respondent preferred a reply to the objection filed by the petitioner under Section 47 of the Code of Civil Procedure. The executing Court vide its order dated 24-11-2004 rejected the objection filed by the tenant under Section 47 of the Code of Civil Procedure and directed the executing Court to proceed aggrieved by the order dated 24-11-2004 the petitioner preferred a revision being SCC Revision No. 82 of 2004 which was dismissed by the revisional Court on 21-12-2004. Thus, this writ petition.

(3.) IN view of what has been stated above, the writ petition No. 22833 of 2005 is dismissed.