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D. Narayana Gowda and ors. Vs. I.N. Krishna Madystha - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberEx. Second Appeal No. 21 of 1975
Judge
Reported inAIR1976Kant56; 1975(2)KarLJ403
ActsCode of Civil Procedure (CPC), 1908 - Sections 47 - Order 21, Rule 16; Karnataka Rent Control Act, 1961 - Sections 48(6)
AppellantD. Narayana Gowda and ors.
Respondenti.N. Krishna Madystha
Appellant AdvocateP. Krishnappa, Adv.
Respondent AdvocatePadubidre Raghavendra Rao, Adv.
Excerpt:
.....it is not as though no opportunity was given to the judgment-debtor in the lower court, that is not possible to find from the order-sheet of the lower court as to what submission was made by the judgment-debtor or his learned counsel on that day or whether the learned counsel for the judgment-debtor was absent on that day. 663 of 1964, that the' decree-holder was not the owner of the schedule property as he had sold it away but failed to substantiate the said contention and also that he did not even urge that ground in c. 663/64 was passed on an application by the decree-holder under section 29 (4) of the karnataka rent control act, 1961 for summary eviction of the judgment-debtor for his failure to pay the rent as required by that section......are the legal representatives of the decree-holder. respondent is the judgment-debtor. the decree-holder was the petitioner in h. r. c. 663 of 1964 on the file of the 1st additional munsiff, bangalore, in which he sought the eviction of his tenant, the present judgment-debtor, under section 21 of the karnataka rent control act, 1961. during the pendency of the h. r. c. proceedings, an application was filed by the landlord-decree-holder under section 29 (4) of the karnataka rent control act. after hearing the parties, an order of eviction was passed on 23-3-1971, giving time to the tenant till 4-4-1971 to vacate the schedule premises. against that order the judgment-debtor filed the revision petition c. r. p. 867 of 1971 in this court, which was heard and dismissed on 5-7-1971......
Judgment:

1. The appellants are the legal representatives of the decree-holder. Respondent is the judgment-debtor. The decree-holder was the petitioner in H. R. C. 663 of 1964 on the file of the 1st Additional Munsiff, Bangalore, in which he sought the eviction of his tenant, the present judgment-debtor, under Section 21 of the Karnataka Rent Control Act, 1961. During the pendency of the H. R. C. Proceedings, an application was filed by the landlord-decree-holder under Section 29 (4) of the Karnataka Rent Control Act. After hearing the parties, an order of eviction was passed on 23-3-1971, giving time to the tenant till 4-4-1971 to vacate the schedule premises. Against that order the judgment-debtor filed the revision petition C. R. P. 867 of 1971 in this Court, which was heard and dismissed on 5-7-1971. Thereafter, the judgment-debtor filed I. A. IV in C. R. P. 867 of 1971 on 22-25/8-1973 praying for extension of time for vacating the premises for one year from 5-7-72. In the affidavit of the judgment-debtor accompanying the application it was stated that the original decree-holder had died on 26-10-1971 after the order passed in the C. R. P. and it is necessary to array the legal representatives of the deceased decree-holder as parties to that petition. The legal representatives of the decree-holder, who are the present appellants, were made parties to that petition in that capacity. No order appears to have passed on that application. Thereafter, the judgment-debtor filed the suit O. S. 308 of 1972 on the file of the First Additional Civil Judge, Bangalore City, for a declaration that the order of eviction passed in H. R. C. proceedings is null and void and for other reliefs and obtained an ex parte order of injunction. After the decree-holder appeared and contested the order of temporary injunction was vacated on 31-5-1973. Against that order, the judgment-debtor filed Miscellaneous Appeal No. 96 of 1973 in the Court of the District Judge, Bangalore. That appeal was dismissed on 25-9-1973. Against that dismissal order Of the District Judge, the judgment-debtor filed C. R. P. 2436 of 1973, which was also dismissed on 21-3-1974.

2. The appellants sought out execution of the eviction order in Execution Petition 508 of 1974, on 16-4-1974. The judgment-debtor filed his objections. He also filed an application under Section 47 of the Code of Civil Procedure, on 17-4-1974, praying that the Court may hold an enquiry and dismiss the execution petition. In the affidavit accompanying that application is was stated that the deceased decree-holder had sold the property in favour of one Srinivasa Setty under a sale deed dated 3-9-1963 and that he therefore lost title to the property before he filed the H. R. C. eviction petition. It was also alleged that the deceased decree-holder obtained an order of eviction by fraud that the H. R. C. Court had no jurisdiction to pass an order of eviction and that the order is therefore without jurisdiction, null and void and inexecutable, that the appellants are executing the said order as legal representatives of the deceased decree-holder, but since the eviction order itself is null and void, it must be held that the decree is so aside and cannot be executed. The appellants filed a rejoinder to the judgment-debtor's application. The executing Court passed an order on 18-4-1974. It was of the opinion that the two important questions for its consideration were, firstly, whether the legal representatives of the deceased decree-holder can execute the decree without complying with Order 21, Rule 16 of Civil P. C. and secondly, whether the decree or order of eviction has become in executable after the death of the decree-holder. It was of the view that the above points require investigation and therefore posted the case for evidence to 29-5-1974. Against this order, the judgment-debtor filed an appeal, Execution Appeal No. 13 of 1974, in the Court of the Principal Civil Judge, Bangalore City. That appeal was allowed and the case was remanded to the Executing Court on 23-7-1974. The operative portion of the said order of remand reads as follows: -

'In the result, the appeal is hereby allowed and the impugned order is set aside. The lower Court is hereby directed to consider all the grounds raised b the appellant in his application under Order 47, Civil P. C. (I. A. No. 2) after giving reasonable opportunities to both the parties and dispose of the execution according to law. No costs in this appeal.'

After remand, the Executing Court passed an order on 16-9-1974 posting the case for evidence on 11-10-1974. The order-sheet of 11-10-1974 shows that the learned Advocate for the decree-holder stated that he has no evidence and the case was posted for arguments for 15-10-1974. Against this order, the judgment-debtor filed the Execution Appeal No. 27 of 1974 in the Court of the Principal Civil Judge, Bangalore. It was held that the appeal was not maintainable as well as that it was premature It was observed that if the judgment-debtor had evidence in support of his contention, he could as well move the lower Court by means of an application asking for permission to lead evidence before hearing arguments on merits, that it is not as though no opportunity was given to the judgment-debtor in the lower Court, that is not possible to find from the order-sheet of the lower Court as to what submission was made by the judgment-debtor or his learned counsel on that day or whether the learned counsel for the judgment-debtor was absent on that day. With those observations, the appeal was dismissed. Subsequently after hearing the arguments, the Execution Court passed an order on 7-11-1974. The application filed by the judgment-debtor under Section 47, Civil P. C. and the one under Section 151, Civil P. C. for adducing evidence were dismissed. Against this order the judgment-debtor filed an appeal in Execution Appeal No. 34 of 1974 in the Court of the Principal Civil Judge at Bangalore. The lower appellate Court came to the conclusion that the order of the executing court shows that arguments were heard only on the application of the judgment-debtor under Section 151, Civil P. C. for adducing evidence and that it cannot be said that the Executing Court has heard and disposed of the application under Section 47, Civil P. C. on merits. It also observed that the executing Court had not followed the directions given in the previous execution appeal. It was, therefore, of the view that the judgment-debtor had not been afforded sufficient opportunity to adduce evidence on the application under Section 47, Civil P. C. It, therefore, set aside the order of the trial Court dated 7-11-1974 and remanded the matter for disposal on I. A-2 filed under Section 47, Civil P. C. keeping in view the directions given in Execution Appeal No. 13 of 1974. It is against this order of remand that the present execution second appeal has been filed by the legal representatives of the deceased decree-holder.

3. It is urged by Mr. P. Krishnappa, appearing for the appellants, that -the objections raised in I. A-2 were in fact considered by the executing Court while coming to the conclusion that no evidence need be adduced. His further contention is that the grounds raised by the judgment-debtor as the basis of his contention that the H. R. C. Court had no jurisdiction to pass the order of eviction cannot be investigated by the Executing Court since they relate to facts which should have been urged in the H. R. C. proceedings itself and cannot be investigated by the Executing Court.

4. In the course of the order, the executing Court referred to certain observations In C. R. P. 2436 of 1973 decided by this Court on 21-3-1974. That revision petition arose under the following circumstances: The Judgment-debtor filed the suit O. S. 308 of 1972 for a declaration that the order passed in H. R. C. 663 of 1964 was without jurisdiction, void and inoperative and for a permanent injunction restraining the present legal representatives, of the decree-holder from executing the said eviction order. The order of temporary injunction which had been issued in favour of the judgment-debtor was later vacated at the instance of the present appellants. Against that order the above C. R. P. was filed. The observations are to the effect that the judgment-debtor had raised the contention in the proceeding, H. R. C. 663 of 1964, that the' decree-holder was not the owner of the schedule property as he had sold it away but failed to substantiate the said contention and also that he did not even urge that ground in C. R. P. 2436 of 1973, which was the revision petition filed by him against the order of eviction under Section 29 (4) of the Karnataka Rent control Act. It was further observed that under the circumstances the judgment-debtor should be deemed to have given up the said contention in the H. R. C. proceedings. The executing Court, therefore, held that the judgment-debtor cannot be permitted to raise the same contention regarding the ownership of the property by the decree-holder on the principles of constructive res judicata. It followed the decision in AIR 1953 Mys 62, (Gurumurthappa v. Chickmunisamappa), cited on behalf of the decree-holder and distinguished the cases reported in : [1961]1SCR591 , (B. V. Patankar v. C. G. Sastry) and : [1969]2SCR1048 , (Smt. Kaushalya Devi v. K. L. Bansal) cited on behalf of the judgment-debtor. It also held that the judgment-debtor is not entitled to adduce any evidence in support of the said contention. With regard to the second Contention urged by the judgment-debtor that the present applicants are not the legal representatives of the decree-holder and that he must be permitted to adduce evidence in support of that contention, it noticed that the judgment-debtor never raised this contention in his application I. A-2. It also noticed that, on the other hand, the judgment-debtor himself had filed the application in C. R. P. 867 of 1971 impleading the present appellants as legal representatives of the decree-holder when he prayed for extension of time to vacate the premises. It noticed that in O. S. 308 of 1972 the present appellants were impleaded as defendants. It also relied on the decision in , (Birbal v. Harlal) and came to the conclusion that the judgment-debtor cannot be permitted to adduce evidence in support of his contention. It next considered the contention that the judgment-debtor is entitled to a notice under order 21, Rule 16, Civil P. C. before the issue of a delivery warrant and since the said notice was not issued, the present execution petition is not maintainable. It held that since there is no assignment, notice need not be issued to the judgment-debtor under Order 24 Rule 16, Civil P. C. It further held that the contention that the relationship of landlord and tenant did not exist is barred by constructive res judicata since it was not urged in C. R. P. 867 of 1971. The applications were therefore, dismissed.

5. It is first urged by Sri Padubidre Raghavendra Rao, appearing for the respondent-judgment-debtor, that the documents filed on behalf of the decree-holder have not been marked as exhibits and that therefore the lower appellate Court was justified in passing the order of remand. But it is to be noticed that these documents have been relied on in the course of the arguments in the executing Court and the executing Court had treated them as evidence, Hence the mere omission to mark these documents as Exhibits by the executing Court amounts to a mere technical defect. No such objection appears to have been taken in the executing Court Moreover, the copies of the orders passed in the revision petitions are certified copies as submitted by the learned counsel for the appellants. Hence this contention must be rejected.

6. It is next contended by Mr. Raghavendra Rao that the application I. A-2 under Section 47, Civil P. C. has not been considered by the executing Court that it has considered and disposed of the judgment-debtor's application under Section 151, Civil P. C. only and that therefore the order of remand passed by the lower appellate Court is justified. The order of the executing Court shows that a request was made on behalf of the judgment-debtor for being given an opportunity of advancing arguments on I. A-2 even if he was not permitted to adduce evidence. The executing Court held that it is unnecessary to hear any further arguments since it had given clear findings that all the objections raised in I. A-2 are not tenable. It, therefore, dismissed I. A-2 also. The order of the executing Court shows that it has dealt with the objections raised in I. A-2 while considering the application under Section 151, Civil P. C. If the finding of the executing Court that the objections raised in I. A-2 are not tenable is correct, then there was no necessity for the executing Court to hear further arguments on I. A-2. The order dismissing I. A-2 under those circumstances would be justifiable. If, on the other hand, the finding of the executing Court that the objection raised in I. A-2 are not tenable, then the order of the lower appellate Court would be justified. Hence the question for decision in this appeal is whether the objections raised in I. A-2 called for decision after recording evidence and whether it is permissible for the executing Court to investigate into the matters referred to in I. A-2 in order to find out whether the Court which passed the order of eviction had jurisdiction to try the H. R. C. proceedings and pass the order of eviction.

7. One of the reasons for the lower appellate Court remanding the case to the executing Court is that the order of the executing Court is contrary to the directions given in Execution Appeal No. 13 of 1974 by the learned Principal Civil Judge. The order in Execution Appeal 13 of 1974 is to the effect that the executing Court has to consider all the grounds raised in I. A-2 after giving reasonable opportunities to both the parties and to dispose of the execution cast according to law. Thereafter the case was posted to evidence on 11-10-1974 on which day on the submission of the learned Counsel for the decree-holder, the Court came to the conclusion that it is unnecessary to record evidence. Against that order, an appeal was filed. The appeal was dismissed with an observation that it is open to the judgment-debtor to request the executing Court for an opportunity to adduce evidence. It is thereafter that the judgment-debtor filed the present application under Section 151, Civil P. C. Hence, it cannot be said that the executing Court acted contrary to the directions given by the learned Principal Civil Judge in Execution Appeal 13 of 1974. The lower appellate Court was in error in coming to a contrary conclusion.

8. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, : [1971]1SCR66 , it has been held that a Court executing a decree cannot go behind the decree which is binding on the parties or their representatives, it must take the decree according to its tenor and cannot entertain any objection that it is incorrect in law or on facts; when the decree its made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding it the objection appears on the face of the record; where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. It was further held that if the decree is on the face of the record without jurisdiction and the question does not relate to the territorial jurisdiction or one under Section 11 of the Suits Valuation Act, objection to the jurisdiction of the Court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the Court which passed the decree had jurisdiction to entertain and try the suit, the objection cannot be raised in an execution proceeding. The question whether the Court which passed the decree had jurisdiction to entertain the suit depended in that case upon the interpretation of the terms of the agreement of lease and the user to which the land was put at the date of the grant of the lease. It was held that those questions cannot be permitted to be raised in an execution proceeding in order to determine the jurisdiction of the court which passed the decree. The High Court had on an investigation of the terms of the lease and other relevant evidence came to the conclusion that the land leased was at the date of the lease used for agricultural purposes and that the Court which passed the decree had no jurisdiction to try the suit. The view taken by the High Court was held to be erroneous and it was held that it was not open to the executing Court to hold that the decree was without jurisdiction upon such an investigation.

9. Hence, in the present case, it is not open to the executing Court to hold an investigation and determine whether the relationship of landlord and tenant existed between the parties to the H. R. C. proceedings as contended on behalf of the judgment-debtor. Mr. Raghavendra Rao, however, relied on decisions in : [1961]1SCR591 , (B. V. Patankar v. C. G. Sastry) and : [1969]2SCR1048 , (Smt. Kaushalya Devi v. K. L. Bansal) and contended that it is open to the executing Court to determine this question on an investigation of the facts by recording evidence.

10. In : [1969]2SCR1048 , the judgment-debtor challenged the validity of the decree by presenting an application under Section 47, Civil P. C. alleging that it had been passed in contravention of the provisions of Section 13 of the Delhi and Ajmer Rent Control Act, 1952. Following the decision, in (1969) 1 SCWR 51 it has held that the decree was a nullity since the order of eviction was passed solely on the basis of the compromise arrived at between the parties and did not indicate that any of the statutory grounds mentioned under Section 13 of that Act existed. But, in the present case, the order of eviction was not passed on the basis of a compromise. The order indicates that the parties were heard and the order was passed under Section 29 (4) of the Karnataka Rent Control Act, 1961. Hence, the decision referred to above has no application to the present case.

11. In : [1961]1SCR591 , the land lords filed a suit for eviction and obtained a decree. In execution, they took possession of the property. The tenant made an application to the executing Court for re-delivery of possession. It was held that the provisions of the Mysore House Rent and Accommodation Control Order, 1948 are a fetter on the executability of the decree and also places a restriction on the power of the Court to execute a decree and that therefore, the order for delivery of possession in execution was without jurisdiction. It was further held that the prohibition on account of the House Rent Control Order was not against the passing of the decree but against its execution and therefore the objection to the executability could only be taken at the time of the execution of the decree and could not be taken by the judgment-debtor earlier since the order for delivery of possession was passed ex parte. It was therefore held that the judgment-debtor was entitled to restitution. In the present case, the order of eviction is passed by the Court exercising jurisdiction under the Rent Control Act. The said decision has no application to the facts of the present case.

12. Mr. Krishnappa, learned counsel for the appellants, has relied on the decisions in AIR 1953 Mys 62, (Gurumurthappa v. Chickmunisamappa); AIR 1974 Kant 51, (Rajappa v. S. Krishnappa & Sons) and 1964 Mys LJ (Suppl) all.

13. In AIR 1953 Mys 62, it has been held that the order of eviction passed by the House Rent Controller is in the nature of a decree and it is not open to the tenant to raise the contention that the order passed by the Controller is invalid in execution of the decree. In AIR 1974 Kant 51, it has been held that the executing Court cannot entertain the plea that the decree has been obtained by fraud and mis-representation. In 1964 Mys LJ (Supp) 611, it has been held that under Section 116 of the Evidence Act, a tenant is precluded from questioning the title of the landlord during the continuance of the tenancy.

14. It is further contended by Mr. Krishnappa that under Section 48 (6) of the Karnataka, Rent Control Act, it is not open to the executing Court to question the validity of the order of eviction passed against the judgment-debtor. But the contention raised on behalf of the judgment-debtor in the present case is with regard to the jurisdiction of the Court which passed the decree. Hence that section does not operate as a bar to the contention raised by the judgment-debtor.

15. It is, therefore, clear that the executing Court cannot investigate into facts to determine whether the relationship of landlord and tenant existed between the parties at the time the H. R. C. Court entertained the landlord's petition and passed the order of eviction in order to determine whether the Court which passed the order of eviction had the jurisdiction to do so.

16. The further contention of the judgment-debtor that a notice ought to have been issued under Order 21, Rule 16, Civil P. C. by the executing Court Was rightly rejected by the executing, Court since there was no assignment of the decree in the present case one other contention urged on behalf of the judgment-debtor is that evidence should be recorded by the executing Court in order to enable him to show that fraud was played by the decree-holder in obtaining the order of eviction against him. This contention was taken in the revision petition C. R. P. 867/71 filed by the judgment-debtor against the order of eviction under the provisions, of the Karnataka Rent Control Act. That contention was rejected by this Court while dismissing that revision petition. Hence, even if this plea was open to the judgment-debtor, it would be barred by the Principles of res judicata.

17. The other point on which the judgment-debtor wants -to adduce evidence is with regard to the absence of the relationship of landlord and tenant between the parties at the time of the order of eviction was passed. The order of eviction in H. R. C. 663/64 was passed on an application by the decree-holder under Section 29 (4) of the Karnataka Rent Control Act, 1961 for summary eviction of the judgment-debtor for his failure to pay the rent as required by that Section. The judgment-debtor opposed that application and contended that he had fully paid all the rents for the schedule premises, that the decree-holder had promised to come to a compromise in the case, that the decree-holder himself wanted the rent to be paid up to date after the final settlement and that the conduct of the decree-holder does not entitle him to the relief sought by him. Hence, the stand taken by the judgment-debtor in that Proceeding shows that he accepted the relationship of landlord and tenant between himself and the decree-holder. Therefore, the plea sought to be raised in that regard is also barred by the principles of res judicata. It is thus seen that even on merits the objections raised in I. A-2 have no legs to stand on.

18. The executing Court was therefore justified in dismissing both I. A-2 and the application under Section 151, Civil P. C. The lower appellate Court was in error in taking the view that it is open to the judgment-debtor to ask the executing Court to investigate into the facts which according to him, would show that the H. R. C. Court had no jurisdiction to pass the order of eviction. Hence, this appeal is allowed, the order of the lower appellate Court is set aside and that of the executing Court is confirmed. The judgment-debtor shall pay the costs of the appellants in this appeal.

19. Appeal allowed.


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