Final Order 1

Order Details: Other
Pdf Text: 1 EXE.APPLN. 280 OF 2019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
EXECUTION APPLICATION NO.280 OF 2019
Mr.Sunderlal Sitaram Nirbhan and anr Applicants/Decree
holder
V/s.
Mr.Ravikumar Rajan Pandayan Non-applicant/Judgment
debtor
Ld. advocate Mr.Agarwal for decree holders
Ld. advocate Mr.Deepak Khushwa for judgment debtor
CORAM : HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
(C.R.NO.01)
DATE :21st March, 2020
ORAL ORDER
1. The judgment was passed by the Competent Authority
under section 24 of the Maharashtra Rent Control Act, 1999
(hereinafter referred to as, “the Act”) in Application no.16/2012
dated 30.07.2012. For execution of the monetary part of the order,
the decree holder filed execution application before this Court and
the same was placed before the Committee of Judges. The
Committee Judges directed the return of the application. The decree
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holder filed execution before the Competent Authority on
15.06.2017. The Competent Authority vide letter dated 31.07.2017
addressed to the Registrar, City Civil Court, Mumbai informing that
the money part of the decree to be executed by this Court. On
29.12.2017, letter was issued by the Registrar of the City Civil Court,
Bombay and the Competent Authority was informed that pursuant to
the order of the Hon’ble Principal Judge the execution was returned
for being executed by the Competent Authority. Competent Authority
vide letter dated 24.06.2019 transferred the execution pertaining to
the money part of the decree for execution by this court.
2. The decree holder filed Writ Petition challenging the
return of the execution. The Hon’ble High Court vide order dated
29.03.2019 in WP No.1189/2018, directed for deciding the issue of
maintainability of the execution after hearing the parties.
3. The bunch of related matters were heard on the point of
maintainability of the execution.
4. The learned counsel for the decree holder argued that
this court has power to execute the decree. He would submit that as
per section 39 of the Code of Civil Procedure. He would submit that
the section 24 of the Act provides that the application for recovery
possession of the licensed premises by the landlord before the
Competent Authority. The said section 24 does not provide that the
execution will lie before the Competent Authority. He would submit
that Hon’ble Bombay High Court in the case of, “Smt. Meera R.
Khanna versus Arun Kumar Ohri” in Notice No. 1099 of 2009 in
Execution Application No. 228 of 2009 held that, select under that
“21….…… The competent authority may itself execute the order or
may transfer it for execution to a competent Civil Court in
accordance with section 39 of the said Code.” He argued that in view
of the above exposition of law, there is no room left to deliberate as
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regard the power of this court to entertain the transfer decree for
execution passed under section 24 of the Act. The argument of the
learned counsel for decree holder is not acceptable that in all the
cases the Competent Authority can transfer decree to Competent Civil
Court for its transfer. The law laid down in above judgment of Meera
is that the Competent Authority can transfer the decree execution to
competent Civil Court in the contigencies envisaged in Section 39 of
the Civil Procedure Code.
5. Learned counsel for the judgement debtor argued that
section 41 of the Presidency Small Causes Courts Act ,1882,
(hereinafter referred to as, “the PSCC “) bar the jurisdiction of the
civil court and therefore, the execution cannot be entertained by this
court and the same is required to be transferred to Small Causes
Court. In support of his contention he placed reliance upon the
judgement of Hon’ble Supreme Court in the case of, “Prabhudas
Damodar Kotecha & Anr. Vs. Smt.Manharbala Jeram Damodar &
Ors.” 2007 (4) ALL MR 651 wherein it is held that “
The provision of
section 41 (1) of Presidency Small Causes Courts Act 1882 neither
specifies as to what the expression “licensee” used therein exactly
means, nor does it expressly exclude any particular category of
licensee. A plain reading of section 41 (1) would show that the
expression “licensee” is used in a general sense. It does not exclude a
gratuitous licensee from its purview.”
6. The law cited in the above case with greatest of respect
will not be applicable in the case in hand for the reasons that the
parties are not at dispute that the proceedings under section 24 and
33 of the Act are to be entertained by the Small Cause Court.
7. The learned counsel for the DH argued that the section
41(1) of the PSCC is not required to be read in isolation and it has to
be read with subsection (2) of the section 41. He argued that as per
Section 41 (2) restrict the applicability of subsection 1 of section 41
to which the provisions of Bombay Rents, Hotel and Lodging Houses
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Rates Control Act, 1947, The Bombay Government Premises
(Eviction) Act, 1955, the Bombay Municipal Corporation Act, the
Maharashtra Housing and Area Development Act, 1976 or any other
law for the time being in force, apply. He argued that section 24 of
the Act provide that the authority vested with the power deal in
respect of the issue between the licensor and licensee, therefore, the
section 41 (1) of the PS CC will not be applicable to oust the
jurisdiction of this Court. In support of his contention he placed
reliance upon the judgement of the Hon’ble Bombay High Court in
the case of, Central Warehousing Corporation, Mumbai vs Fortpoint
Automotive Pvt.Ltd. Mumbai 2010 (1) Mh. L.J. 658 wherein it is
held,
“For, insofar as right of a licensor to recover possession of
immovable property or of license fee thereof, the same is now
governed by the regime of section 24 of the Rent Act 1999. Section
24 opens with a non-obstante clause. It provides that
notwithstanding anything contained in this Act (Act of 1999), a
licensee in possession or occupation of premises given to him on
license for residence shall deliver possession of such premises to the
landlord on expiry of the period of license and the failure of the
licensee to so deliver the possession of licensed premises, the
landlord shall be entitled to recover possession of such premises from
the licensee, on the expiry of the period of license, by making
application to the Competent Authority. Indeed, this provision
applies only to premises given on license “for residence” and where
the license term has expired. Therefore, on proper construction of
section 41 of the Act of 1882, it would follow that the exclusive
jurisdiction invested in the Rent Court or for that matter the
Competent Authority by virtue of sections 33 and 24 respectively in
relation to suits and proceedings governed by these provisions have
been exempted from the application of section 41 (1) of the Act of
1882. To put it differently, this generic expression “or any other law
for the time being in force” will have to be understood to mean that
all such laws which are for the time being in force, which provide for
the mechanism for recovery possession of specified immovable
property (governed by such legislation) or license fee thereof, the
same have been exempted from the application of section 41 (1) of
the act tablet the Act and to that extent the Small Causes Court will
have no jurisdiction.”
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I have considered the law laid down in the above cited judgement. In
the case in hand there is no issue about the jurisdiction of the
Competent Authority to entertain application under section 24 of the
Act. The Competent Authority has decided the issue under section 24
of the Act. Therefore, in the peculiar facts and circumstances of this
case the law cited in the case of Central Warehousing
(supra) has no
bearing as there is no dispute of entertaining the dispute between
landlord and licensee as per section 24 of the Act. The moot question
for consideration is whether this Court has jurisdiction to entertain
the execution or the Small Causes Court. It would be appropriate to
refer section 31 of the PSCC and the same is reproduced as under;-
S.31. Execution of decree of Small Cause Court by the other Courts. –
If the judgement – debtor under any decree of the Small Cause Court
has not, within the local limits of its jurisdiction, movable property
sufficient to satisfy the decree, the Court may, on the application of
the decree – holder, send the decree for execution
(a) in the case of execution against immovable property
situate within such local limits – [to the Madras City Civil
Court or, [ the Bombay City Civil Court and the High Court of
Judicatre at Fort William [ as the case may be;]]
(b) in all other cases – to any Civil Court within the local
limits of whose jurisdiction such judgment-debtor, or any
movable or immovable property of such judgment-detor, may
be found.
8. From the section 31 of the PSCC, it is clear that even a
decree passed by Court of Co-Ordinate jurisdiction of Small Cause
cannot be transferred to the Small Cause Court for execution.
The section 31 envisages the decree can be transferred for
execution to the competent Civil Court, even if, the decree is of
the Small Causes Court. To simplify it, if a decree is passed by
Small Cause Court at Chennai and if it is transferred for
execution for Mumbai, it is to be executed by the City Civil
CourtMumbai and not by the Small Cause Court, Mumbai.
Therefore, the objection that the transferred decree is to be
executed by the Small Cause Court, Mumbai is not maintainable.
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9. The Ld. Counsel for JD argued that section 47 of the Act
bar the jurisdiction of the civil court. He would submit that the
Competent Authority alone has jurisdiction to execute its order under
the Act. In order to support his contention, he placed reliance upon
the judgement of Hon’ble Bombay High Court in the case of, “Mr K
Gopalrao & Ors. Vs. Deepak Niranjanath Pandit” 2013 (4) ALL MR
237. The Hon’ble Bombay High Court reiterated the position laid
down in the case of
Smt. Asmabi Ahmad Baba Shaikh & Anr. Vs.
Smt.Rani Bhagwat Singh as under:-
“3. Section 47 of the Maharashtra Rent Control Act,
1999, provides that save as otherwise expressly
provided in the Act, no civil court shall have
jurisdiction in respect of any matter, which the
Competent Authority or the State Government or an
Officer authorised by it is empowered by or under the
Act to decide. The Applicants were, therefore,
justified in moving Competent Authority for the
issuance of warrant of possession which, as noted
above was issued. The order of the Competent
Authority was confirmed by this Court on 30 March
2007. Therefore, there was in any event, no warranty
law to move this Court in execution proceedings for
the issuance of afresh warrant of possession. The
effect of Section 45 read with Section 47 of the
Maharashtra Rent Control Act, 1999 is that the
Competent Authority alone has jurisdiction to
execute its orders under the Act.”
10. In the case of
Mr K Gopalrao (supra) the execution
application was filed for execution of the money decree passed by
the Competent Authority. TheHon’ble Bombay High Court
considering the above position of law held that,
“5. The above
observations are undisputed position of law. I am in agreement
with the view taken by this Court in the similarly situated
matters. Such execution application is not maintainable in this
court. The remedy is elsewhere. In view of the specific provisions
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available under the Rent Act, the bar, therefore, so created in my
view cannot be overlooked as sought to be contended by the
learned counsel appearing for the Applicants that this execution is
only for recovery of the money or monetary claim. The provisions
under the Rent Act take care of possession as well as such
monetary claims.”
11. The Hon’ble Bombay High Court held that such
execution application arising out of the judgement and decree
passed by the Competent Authority under the Maharashtra Rent
Control Act is not maintainable in the ordinary original civil
jurisdiction of the Hon’ble High Court and the execution
application was dismissed.
12. Thus, it is clear from the above exposition of law that
the jurisdiction is vested with the Competent Authority to execute
its own decree. The circumstances under which a decree can be
sent for execution to another court have been enumerated in
clauses (a) to (d) of sub-section (1) of the section 39 of the Code
of Civil Procedure . Section 39 of the Code is reproduced for the
ready reference -
Section 39 - Transfer of decree – (1) The Court which passed a
decree may, on the application of the decree-holder, send it for
execution to another Court [of competent jurisdiction], -
(a) if the person against whom the decree is pased actually and
voluntarily resides or carries on business, or personally works for
gain, within the local limits of the jurisidiction of such other
Court, or
(b) if such person has not property within the local limits of the
jurisdiction of the Court which passed the decree sufficient to
satisfy such decree and has property within the local limits of the
jurisdiction of such other Court, or
(c) if the decree directs the sale or delivery of immovable property
situate outside the local limits of the jurisdiction of the Court
which passed it, or
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(d) if the Court which passed the decree considers for any other
reason, which it shall record in writing, that the decree should be
executed by such other Court.
(2) The Court which passed a decree may of its own motion send
it for execution to any subordinate Court of competent
jurisdiction.
[(3) For the purposes of this section, a Court shall be deemd to be
a Court of competent jurisdiction if, at the time of making the
application for the transfer of decree to it, such Court would have
jurisdiction to try the suit in which such decree was passed.]
[(4) Nothing in this section shall be deemd to authorise the Court
which passed a decree to execute such decree against any person
or property outside the local limits of its jurisdiction. ]
13. It is not the case that the property of the judgement
debtor is not within the jurisdiction of the Competent Authority or
a does not carry out business or personally work for gain within
the jurisdiction of the Competent Authority. Section 39 of the
Code of Civil Procedure will be applicable when the test given in
it are applicable for the transfer of decree. The reason assigned by
the Competent Authority is that it has no power to execute money
decree. The statement of Competent Authority is not supported by
any statement of law. On the contrary, the said observation of the
Competent Authority is in deviation to the above settled position
of law in case of
Mr. K Gopalrao (supra). The present execution
application is not falling within the ambit of transfer of decree.
Therefore, the execution application is not maintainable before
the City Civil Court, Mumbai. Hence, it is expedient to pass the
following order.
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ORDER
1. The execution application is not maintainable before the City
Civil Court, Mumbai.
2. The execution application be sent back to the Competent
Authority.
3. No order as to costs.
21/3/2020 (M.SALMAN AZMI)
Judge, City Civil Court,
Gr.Bombay.
Dictated on : 21/03/2020
Typed on : 21/03/2020
Signed on : 08/09/2020
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
08/09/20 at 11.45 am.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
21/03/2020
Judgment and order signed by
P.O.
08/09/2020
Judgment/order uploaded on 08/09/2020
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