1.0. Present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the petitioners herein-original plaintiffs to quash and set aside the impugned judgment and order dated 14.12.2000 passed by the learned Extra Assistant Judge Valsad at Navsari passed in Regular Civil Appeal No.70 of 1993 by which the learned Appellate Court has allowed the said appeal preferred by the respondent herein-original defendant no.3 and has quashed and set aside the order passed by the learned Executing Court-learned Civil Judge (J.D.), Umargoan dated 11.12.1987 passed in Execution Petition No.6 of 1987 and objection filed by respondent no.1 herein-original defendant no.3 came to be accepted and Execution Petition No. 6 of 1997 regarding recovery of possession of suit premises prayed by the petitioner herein came to be rejected.
2.0. The facts leading to the present Civil Revision Application in nutshell are as under;
2.1. That the petitioners herein -original landlord instituted Regular Civil Suit No.49 of 1985 for recovery of possession / decree of eviction on the ground that respondent nos. 3 and 4 herein have subletted the suit premises to the respondent no.1 herein. It appears that in the said suit, the parties arrived at the consent terms under which the petitioners herein-original landlord accepted the respondent no.1 herein as a tenant of the suit premises at the monthly rent of Rs.60/- and simultaneously it was also agreed by the petitioners herein-original plaintiffs to sell the suit premises to the respondent no.1 herein for sale consideration of Rs.25000/- to be paid on or before 5.5.1986. That the learned Judge passed the consent decree on dated 26.2.1986. It appears that petitioners herein
-original plaintiffs filed Execution Petition No. 6 of 1987 before the learned Civil Judge (J.D.), Umagoan for recovery of Rs.25000/- on the respondent no.1 herein -original defendant no.3 failing which to direct the handover of the suit premises to the plaintiffs. The said execution petition was opposed by respondent no.1 herein-original defendant no.3 by submitting that as such original defendant no.3 has already deposited a sum of Rs. 25000/- on or before 5.5.1986 and even a draft sale deed was also sent. It was also submitted that even he has already produced the same before execution of the sale deed. It was also submitted that as such, such a execution petition by the petitioners -original plaintiffs is not maintainable.
2.2. However, the learned Executing Court by order dated 11.12.1987 has allowed the said Execution Petition by directing the respondent no.1 herein
-original defendant no.3 to handover the peaceful and vacant possession of the suit premises to the plaintiffs by submitting that as such no decree has been passed directing the plaintiffs to execute the sale deed and therefore, Executing Court cannot go beyond the decree.
2.3. Feeling aggrieved and dissatisfied with the order passed by the learned Executing Court dated 11.12.1987 passed in Execution Petition. No. 6 of 1987, respondent no.1-original defendant no.3 preferred Regular Civil Appeal No.70 of 1993 before the District Court and the District Court by impugned judgment and order has allowed the said appeal by quashing and setting aside the order passed by the learned Executing Court.
2.4. Being aggrieved and dissatisfied with the impugned order passed by the learned Appellate Court - earned Extra Assistant Judge Valsad at Navsari in allowing the said appeal by quashing and setting aside the order passed by the learned Executing Court, the petitioners herein-original plaintiffs herein have preferred present Civil Revision Application under Section 115 of the Code of Civil Procedure.
3.0. Having heard Shri Nishant Lalakiya, learned advocate for Shri Hriday Buch, learned advocate for the petitioners -herein plaintiffs and Shri Jigar Patel, learned advocate for the respondent no.1 -original defendant no.3 and considering the consent decree passed by the learned trial Court passed in Regular Civil Suit No. 49 of 1985 and order passed by the learned Executing Court as well as impugned order passed by the learned Appellate court, it appear and it is not in dispute that as such consent terms/ consent decree between the petitioners and the original defendant no.3 are in two parts. First is regarding accepting respondent no.1 herein-original defendant no.3 has a tenant at the monthly rent of Rs.60/- and second part of the said decree is regarding execution of the registered sale deed by the petitioners-original plaintiffs in favour of respondent no.1herein-original defendant no.3 with respect to the very suit property on depositing Rs.25000/- and according to second part the defendant no.3 was required to deposit an amount of Rs.25000/- in the Court on or before 5.5.1986 and on depositing the said amount, the petitioners were required to execute the registered sale deed of the suit premises. It is not in dispute that respondent no.1 herein-original defendant no.3 had deposited Rs.25000/- in the learned trial Court on or before 5.5.1986 which is still lying with the Civil Court. Under the circumstances, as such the petitioners herein-original plaintiffs also required to execute the sale deed with respect to the suit premises in favour respondent no.1-original defendant no.3. However, it appears that while submitting draft sale deed the respondent herein-original defendant no.3 describing property beyond even the suit property i.e. compound, Well etc. which was not the subject matter of the earlier suit in which decree was passed.
4.0. Today, when the present Civil Revision Application is taken up for final hearing Shri Jigar Patel, learned advocate for the respondent no.1-original defendant has candidly and specifically conceded and admitted that the petitioners are required to execute sale deed with respect to the suit property for which Regular Civil Suit No. Regular Civil Suit No.49 of 1985 was filed only and not with respect to all the properties mentioned in the draft sale deed.
5.0. Under the circumstances and as stated above, plaintiffs are required to execute the sale deed in favour of respondent no.1 herein-original defendant no.3 with respect to suit property which was let to him as the defendant no.3 has already deposit a sum of Rs.25000/- with the learned trial Court on or before 5.5.1986 as per the decree passed in Regular Civil Suit No.49 of 1985. Under the circumstances, no illegality has been committed by the learned Appellate Court in quashing and setting aside the order passed by the learned Executing Court. Having gone through the order passed by the learned Executing Court which has been set aside by the learned Appellate Court it appears to the Court that order passed by the learned Executing Court directing the defendant to handover the possession of the suit premises to the plaintiffs cannot be sustained. As even otherwise, respondent no.1 herein-original defendant no.3 was accepted as a tenant under the consent decree and he was entitled to retain the possession even as a tenant. In any case, when respondent no.1 herein-original defendant no.3 deposited an amount of Rs.25000/- on or before 5.5.1986 as per the second part of the consent decree, the plaintiffs were required to execute the sale deed in favour of the respondent no.1-original defendant no.3 with respect to the suit property. Under the circumstances, no illegality has been committed by the learned Appellate Court by passing impugned order which is just, proper and consonance with the consent decree passed in Regular Civil Suit No.49 of 1985.
6.0. In view of the above and for the reasons stated above, present Civil Revision Application fails and same deserves to be dismissed and is accordingly dismissed. However, with clarification and even as agreed by the learned advocate for the respondent no.1-original defendant no.3 that petitioners-original plaintiffs are required to execute the sale deed in favour of respondent no.1 with respect to the suit premises which was let to him for which Regular Civil Suit No.49 of 1985 was filed and not with respect to entire property as mentioned in the draft sale deed i.e. with respect to the adjacent compound, Well etc. as claimed by the defendant no.3 in the draft sale deed. Such exercise shall be completed within a period of two months from the date of receipt of the order and expenditure of execution of the sale deed shall be borne by respondent no.1 herein-original defendant no.3. Thereafter, it will be open for the petitioners - original plaintiffs to withdraw the amount of Rs.25000/- with interest accrued thereon which respondent no.1-herein original defendant no.3 deposited in the learned trial Court pursuant to the consent decree passed by the learned trial Court passed in Regular Civil Suit No.49 of 198, which the learned trial Court shall pay to the petitioners by Account Payee Cheque on production of xerox copy of the sale deed executed by them in favour of respondent no.1-original defendant no.3 with respect to the suit property as stated above. With this, Rule is discharged. No costs.
sd/-
( M. R. Shah, J. ) kaushik Top