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Raghavendra Kalmeshwar Kulkarni and anr. Vs. Siwaya Basya Hiremath and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberMisc. Second Appeal No. 36 of 1969
Judge
Reported inAIR1970Kant108; AIR1970Mys108; (1969)2MysLJ250
ActsCode of Civil Procedure (CPC), 1908 - Sections 47, 144 and 151 - Order 21, Rules 35 and 36; Mysore House Rent and Accommodation Control Order, 1948; Mysore Land Reforms Act - Sections 41
AppellantRaghavendra Kalmeshwar Kulkarni and anr.
RespondentSiwaya Basya Hiremath and ors.
Appellant AdvocateB.V. Deshpande and ;K.R.D. Karanth, Advs.
Respondent AdvocateV.S. Malimath and ;M. Rama Bhat, Advs.
Excerpt:
.....of this court reported in 1968 (1) mys. the inapplicability of section 47 to the proceedings out of which the appeal has arisen was also raised before us, but that contention is equally unsubstantial because the question whether the decree was completely satisfied and therefore, the court became functus officio is a matter relating to execution, satisfaction and discharge of the decree'.further it is observed:.....relied upon by the appellant's counsel cannot assist his contention. 6. the application for re-delivery ofpossession was made in the case decided by the supreme court after the delivery of possession was made. what is now sought by the judgment-debtors in this case under ex. 15 is to raise objections in regard to the validity of the order passed for delivery of possession and the consequent order disposing of the execution petition. 7. the learned judge does not advert to the merits of the objections sought to be raised by the judgment-debtors. it may be mentioned here that the judgment-debtors filed their objection statement before the appellate court but the appellate court has not gone into the merits of the objections which he could not properly go into. 8. sri deshpande.....
Judgment:

1. The appellants who are the decree-holders sued out execution of the decree ultimately confirmed in S. A. No. 275/1965 on 24-2-1966. For delivery of possession of the property they made an application in L. C. D. No. 140/1966 on the file of the First Additional Munsiff, Hubli and obtained possession of the property on 17-4-1966. On 1-6-1966, the decree-holders filed a memo marked Ex. 14 acknowledging delivery of possession of the properties and seeking suitable orders. On the same day, the judgment-debtors made an application marked Ex. 15 opposing the memo filed by the decree-holders, stating that the possession of the property was handed over to them. The judgment-debtors further submitted that the purported delivery of possession on 17-4-1966 was not legal and that the same is not binding on the judgment-debtors and that they may be given an opportunity to file objections in this regard. The learned Munsiff passed an order on Exhibit 14 in the following terms:

'possession deliverd. E. P. disposed off'.

2. This order is dated 3-6-1966. On the same day, the learned Munsiff rejected the application of the judgment-debtors seeking an opportunity to file objections in regard to delivery of possession. Against this order dated 3-6-1966, the judgment-debtors filed Civil Appeal No. 119 of 1966 before the Civil Judge, Hubli. The appellate court allowed the appeal and set aside the order passed by the learned Munsiff and remanded the matter to the trial Court for fresh trial and disposal according to law. It is against this order the decree-holders have preferred this Second Appeal,

3. This appeal appears to have been registered earlier as Civil Revision Petition No. 658 of 1967 but later, it came to be registered as Miscellaneous Second Appeal No. 36 of 1969. The order passed by the learned Civil Judge is not to set aside the order passed on Ex. 14 but merely deals with the order rejecting Ex. 15.

4. Sri. E. V. Deshpande, learned counsel for the appellants contends that an application like Ex. 15 is not maintainableas the same was filed at a stage when possession of the property has already been delivered. He placed strong reliance on a decision of this court reported in 1968 (1) Mys. L. J. 311, Though it appears that the said decision supports the contention of Sri Deshpande, it cannot be of much use to him in view of the decision of the Supreme Court reported in : [1961]1SCR591 . It was pointed out by the respondent's counsel that when the decision reported in 1968 (1) Mys. L. J. 311 was tendered, the Supreme Court's decision has not been brought to its notice. With reference to the contention that the objection could not be raised by the judgment-debtor after the decree-holder acknowledges delivery of possession, it is observed in the above cited High Court decision that:

'the learned counsel for the respondent , has not drawn my attention to any provision in the Code which entitles a judgment debtor to raise objections before the executing Court that the delivery of possession accepted by the decree-holders as complete and effectual is a paper delivery.' It is further observed that:

'At the stage of delivery, the Code does not contemplate any objection being raised by the judgment-debtor to the delivery of possession made under Rule 35 or 36 of Order XXI.........'.

'In my judgment, at the stage of delivery the judgment-debtor has no interest in the property to protect and he is not entitled to raise any objection to the delivery effected through the process of the Court which is accepted by the decree-holder, except where objection is raised that there is excess delivery or that property not covered by the decree is delivered.'

5. The learned counsel Sri V. S. Mali-math appearing for the judgment-debtor, who places reliance on : [1961]1SCR591 , submits that it takes a different view. This submission is not without force. The appellants therein took out execution on 9th July 1951 and got possession of the property on 22nd July 1951. On 13th August 1951, the respondent-judgment-debtor made an application to the executing Court under Sections 47, 144 and 151 of the Code of Civil Procedure for setting aside the ex parate order of delivery of possession and for re-delivery of possession of the house to him. The District Judge rejected the said application. But on appeal, this order was reversed and the High Court directed the decree-holders to return possession of the house in dispute to the judgment-debtor. The High Court held that the executing Court has no jurisdiction to order the eviction of the respondent because of the provisions of Mysore House Rent and Accommodation Control Order 1948,which was in operation on the date of eviction. Regarding the applicability and the maintainability of the application, the Supreme Court observed:

'The inapplicability of Section 47 to the proceedings out of which the appeal has arisen was also raised before us, but that contention is equally unsubstantial because the question whether the decree was completely satisfied and therefore, the court became functus officio is a matter relating to execution, satisfaction and discharge of the decree'. Further it is observed:

'When a sale in execution of a decree is impugned on the ground that it is not warranted by the terms thereof, that question could be agitated, when it arises between parties to the decree, only by an application under Section 47, and not in a separate suit.'

It may further be stated that the objection raised by the judgment-debtor in the case reported in 1968 (1) Mys. L. J. 311, was that the delivery effected to the decree-holder by the bailiff was, only a paper delivery and actual delivery had not been effected and therefore record of delivery could not be made but the Court overruling the objection recorded delivery of possession; the decree-holder, had accepted delivery of possession effected through the bailiff of the court without any objection and it is in these circumstances that the High Court held that the judgment-debtor was precluded from raising any objection relating to the delivery of possession. Though the observations appear to lend support to the appellant's contention they should be taken with reference to the facts of the case. For this reason also the observations relied upon by the appellant's counsel cannot assist his contention.

6. The application for re-delivery ofpossession was made in the case decided by the Supreme Court after the delivery of possession was made. What is now sought by the judgment-debtors in this case under Ex. 15 is to raise objections in regard to the validity of the order passed for delivery of possession and the consequent order disposing of the execution petition.

7. The learned Judge does not advert to the merits of the objections sought to be raised by the judgment-debtors. It may be mentioned here that the judgment-debtors filed their objection statement before the appellate Court but the appellate Court has not gone into the merits of the objections which he could not properly go into.

8. Sri Deshpande submitted that the judgment-debtors have made an application under Section 41 of the Mysore Land Reforms Act and the same is pending. Further, it is submitted that the respon-dents have filed a petition for review of the judgment of this court in S. A. No. 275 of 1965. The judgment-debtors have further filed a Long Cause Suit for a declaration that the proceedings before the learned Munsiff are null and void and that their possession was protested. It appears to me that the pendency of these proceedings do not disentitle the judgment-debtors from raising the objections in respect of which they have sought permission under Ex. 15. In my opinion, the trial Court erred in shutting out the judgment-debtors from raising the objections. It was not proper that the judgment-debtors should have been permitted to make an application incorporating their objections and seeking such reliefs as they thought proper and the trial Court ought to have disposed of the same on merits after giving the decree-holder an opportunity to file their objections. In this view of the matter, it appears to me that the order of the learned Civil Judge allowing Ex, 15 and setting aside the order of the Munsiff dated 3-3-1966 rejecting Ex. 15 is correct.

9-10. The learned Munsiff will now receive the application filed by the judgment-debtors in the appellate Court and proceed to dispose of the same on merits, after giving the decree-holders an opportunity to file their objections.

11. The order passed at present in the Execution Petition will be subject to the final orders on the objection petition filed by the judgment-debtors as permitted by the lower-appellate Court.

12. With these observations, the Second Appeal is dismissed.

13. There will be no order as to costs.

14. Order accordingly.


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