Post Master and ors. Vs. Voleti Satya Panivardhini and anr. - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - it is well known that the executing court has to execute the decree as it is, but cannot read something, which is not in the decree. it is well known that a declaratory decree is incapable of execution, as it merely declares the rights of the decree holder and nothing more, and does not give any direction to the defendants (j.orderc.y. somayajulu, j.1. respondents, who are the wife and son of voleti subba rao, filed the suit against the revision petitioners for a declaration that they became the owners of and thereby acquired title to the indira vikas patras purchased by voleti subba rao during his lifetime, consequent on his death on 27-4-1993 and inasmuch as those indira vikas patras were lost, or are not traceable, and for a consequential injunction restraining the first revision petitioner (post master, chirala head post office) from allowing encashment of those indira vikas patras, whose details are mentioned in the plaint schedule, pending decision relating to their title.2. after contest by the revision petitioner the trial court passed following decree in the suit.(i) that the plaintiffs be and are hereby declared as owners to the indira vikas patras as shown in the plaint schedule items 1 to 8;(ii) that the first defendant be and is hereby directed not to allow the encashment of the schedule mentioned indira vikas patras to anybody pending decision of the plaintiffs' title to thesame;after obtaining the said decree respondents filed e.p.no. 105 of 2000 for recovery of the amount covered by the indira vikas patras, alleging that revision petitioners are not paying the amounts covered by the indira vikas patras and got the movable property i.e., furniture in the office of the 1st revision petitioner, attached and after the executing court gave a direction to the respondents to file sale papers for sale of the attached property, revision petitioners filed this revision questioning the order of the executing court.3. heard learned standing counsel for the central government and the learned counsel for the respondents at length.4. the indira vikas patras, admittedly, were purchased by voleti subba rao, who is the husband of first respondent and father of the second respondent. the specific case of the respondents is that they became entitled to the indira vikas patras as legal heirs to the estate of said subba rao. i have extracted above the decree passed by the trial court, which only declares the title of the respondents to the indira vikas patras. there is no direction in the decree to the respondents to pay the amount covered by the indira vikas patras. it is well known that the executing court has to execute the decree as it is, but cannot read something, which is not in the decree. it is well known that a declaratory decree is incapable of execution, as it merely declares the rights of the decree holder and nothing more, and does not give any direction to the defendants (j.drs.) either to do or to refrain from doing any act (see state of madhya pradesh v. mangilal sharma : (1998)illj995sc ). when there is no direction in the decree to pay the amount covered by the indira vikas patras belonging to voleti subba rao, question of respondents filing e.p. for recovery of the amounts covered thereby does not arise. therefore, the court below was in error in entertaining the e.p. and ordering steps for sale of the movable property belongs to the first revision petitioner.5. hence, the revision petition is allowed with costs and consequently e.p. no. 105 of 2000 in o.s. no. 44 of 1996 stands dismissed with costs. amount deposited by the revision petitioners in pursuance of the interim order passed earlier can be withdrawn by them.

Judgment:
ORDER

C.Y. Somayajulu, J.

1. Respondents, who are the wife and son of Voleti Subba Rao, filed the suit against the revision petitioners for a declaration that they became the owners of and thereby acquired title to the Indira Vikas Patras purchased by Voleti Subba Rao during his lifetime, consequent on his death on 27-4-1993 and inasmuch as those Indira Vikas Patras were lost, or are not traceable, and for a consequential injunction restraining the first revision petitioner (Post Master, Chirala Head Post Office) from allowing encashment of those Indira Vikas Patras, whose details are mentioned in the plaint schedule, pending decision relating to their title.

2. After contest by the revision petitioner the trial Court passed following decree in the suit.

(i) that the plaintiffs be and are hereby declared as owners to the Indira Vikas Patras as shown in the plaint schedule items 1 to 8;

(ii) that the first defendant be and is hereby directed not to allow the encashment of the schedule mentioned Indira Vikas Patras to anybody pending decision of the plaintiffs' title to thesame;

After obtaining the said decree respondents filed E.P.No. 105 of 2000 for recovery of the amount covered by the Indira Vikas Patras, alleging that revision petitioners are not paying the amounts covered by the Indira Vikas Patras and got the movable property i.e., furniture in the office of the 1st revision petitioner, attached and after the executing Court gave a direction to the respondents to file sale papers for sale of the attached property, revision petitioners filed this revision questioning the order of the executing Court.

3. Heard learned Standing Counsel for the Central Government and the learned Counsel for the respondents at length.

4. The Indira Vikas Patras, admittedly, were purchased by Voleti Subba Rao, who is the husband of first respondent and father of the second respondent. The specific case of the respondents is that they became entitled to the Indira Vikas Patras as legal heirs to the estate of said Subba Rao. I have extracted above the decree passed by the trial Court, which only declares the title of the respondents to the Indira Vikas Patras. There is no direction in the decree to the respondents to pay the amount covered by the Indira Vikas Patras. It is well known that the executing Court has to execute the decree as it is, but cannot read something, which is not in the decree. It is well known that a declaratory decree is incapable of execution, as it merely declares the rights of the decree holder and nothing more, and does not give any direction to the defendants (J.Drs.) either to do or to refrain from doing any act (See State of Madhya Pradesh v. Mangilal Sharma : (1998)ILLJ995SC ). When there is no direction in the decree to pay the amount covered by the Indira Vikas Patras belonging to Voleti Subba Rao, question of respondents filing E.P. for recovery of the amounts covered thereby does not arise. Therefore, the Court below was in error in entertaining the E.P. and ordering steps for sale of the movable property belongs to the first revision petitioner.

5. Hence, the revision petition is allowed with costs and consequently E.P. No. 105 of 2000 in O.S. No. 44 of 1996 stands dismissed with costs. Amount deposited by the revision petitioners in pursuance of the interim order passed earlier can be withdrawn by them.