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Arjun Vs. Zempanna Gangappa Sambanni - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCRP 1229 of 1982
Judge
Reported inILR1985KAR3637
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 97
AppellantArjun
RespondentZempanna Gangappa Sambanni
Appellant AdvocateS.B. Hebballi, Adv. for ;B.V. Krishnaswamy Rao, Adv.
Respondent AdvocateK. Chennabasappa, Adv. for Respondents 1 to 4
DispositionCivil revision petition dismissed
Excerpt:
.....appeal against an order passed by the munsiff would lie. it is undisputed that an appeal against a decree passed by the munsiff would lie to the civil judge. therefore, an appeal would lie only in the court of the civil judge and no revision can be filed against such an order directly in the court of the district judge. - motor vehicles act (59 of 1988)sections 163-a & 173: [a.n.venugopala gowda, j] appeal for enhancement of compensation - selection of multiplier - held, life expectancy of the deceased or the beneficiaries, whichever is shorter, is an important factor in the matter of determination of loss and awarding of compensation. hence, the choice of multiplier should be either with reference to the age of the deceased or the surviving beneficiary, which ever is higher. on facts..........author mulla has said in his book on cpc, 14th edition, vol. ii, 1692 as :'under the earlier rule a decree-holder could either resort to the summary remedy provided by that rule or bring a regular suit. the same is also the position now save that the proceeding under this rule is not a summary proceeding but a full fledged adjudicating proceeding and the order made therein has the force of a decree and is subject to an appeal. failure on the part of the decree-holder to avail himself of the remedy under this rule does not deprive him of his right to bring in a regular suit against this party obstructing execution of the decree.'he has further said on the same page as:'instead, the executing court has to determine all questions,including questions as to the right, title or interest.....
Judgment:
ORDER

Kulkarni, J.

1.This is a revision by the obstructer Arjun s/o. Sangappa Gunnapur against the order dated 5-4-82 passed by the Civil Judge, Bijapur, in Ex. Appeal No. 1/81 reversing the order dated 6-4-81 passed by the Munsiff, Bijapur Ex.case No. 57/79.

2. The respondents in the present revision obtained an order of eviction under Section 21(1)(j) in HRC 8/73 against the obstruotor's (revision petitioner's) father on 23-3-1977. The revision by the father of the obstructer was dismissed on 17-7-79. The obstructer's father approached this Court with CRP 301/78 and it was also dismissed on 8-1-79. The respondents-landlords thereafter sued out the execution in Ex. Case No. 57/79 against the revision petitioner's father who had suffered an order of eviction in the said case. During the pendency of the execution, the present revision petitioner who is the son of the JDR. against whom the order of eviction was passed, has taken up a contention that he is a tenant directly under the respondents-landlords in respect of the premises in question. He obstructed to the delivery of possession. Hence, respondents landlords filed an application under Order 21, Rule 97 CPC for removing the obstruction.

3. The revision petitioner obstructer resisted that petition.

4. The Munsiff upheld the contentions of the obstructer and negatived the contentions of the landlords raised by them under Order 21, Rule 97. Hence the landlords-respondents approached the Civil Judge with Ex.A.1/81. The Civil Judge accepted the appeal and removed the obstruction offered by the revision petitioner and ordered that the executing Court should put the landlords in possession of the property. Hence, the revision by the obstructer.

5. Learned Counsel Hebballi at the threshold contended that the appeal to the Civil Judge against the order passed by the Munsiff was incompetent.

6. The landlords filed an application under Order 21, Rule 97 after the obstructer put forth the obstruction to the delivery of the properly in the execution, complaining of such resistance and obstruction. Order 21, Rule 98 speaks ;

'(1) Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2)--

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application ; or

(b) pass such other order as, in the circumstances of the cases it may deem fit.

(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.'

Order 21, Rule 100 speaks as:

Upon the determination of the questions referred to in Rule 101, the Court shall, in accordance with such determination :--

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

b) pass such other order as in the circumstances of the case it may deem fit .

Order 21, Rule 101 speaks as :

'A11 questions (including question relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.'Order 21, Rule 103 reads as :

'Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.'Therefore, the order passed by the Munsiff on an application filed by the landlords to remove the obstruction offered by the present revision petitioner would operate as a decree. Learned Author Mulla has said in his book on CPC, 14th edition, vol. II, 1692 as :'Under the earlier rule a decree-holder could either resort to the summary remedy provided by that rule or bring a regular suit. The same is also the position now save that the proceeding under this rule is not a summary proceeding but a full fledged adjudicating proceeding and the order made therein has the force of a decree and is subject to an appeal. Failure on the part of the decree-holder to avail himself of the remedy under this rule does not deprive him of his right to bring in a regular suit against this party obstructing execution of the decree.'

He has further said on the same page as:

'Instead, the executing Court has to determine all questions,including questions as to the right, title or interest arising between the parties to the proceeding and the order passed therein has been given the character of a decree. The right of the party against whom the order is passed is by way of appeal and not by a suit.'

It has been further said at page 1684 as :

'There is no longer the right to file a suit against orders passed under Rs. 98 and 100. The remedy now is by way of appeal,'

Therefore, the contention of Learned Counsel Hebballi that no appeal against the order passed by the Munsiff wascompetent only merits to be rejected. Therefore, the appeal filed by the respondents landlords against the order passed by the Munsiff, rejecting the application of the landlords filed under Order 21, Rule 97 is competent and maintainable.

7. Then Learned Counsel Hebballi urged that as the matter related to an action under the provisions of the Rent Control Act a revision ought to have been filed to the District Judge. It cannot be denied that the Munsiff has got the jurisdiction to execute the order passed by him under the H.R.C. Act. Any order passed in such execution will be appealable and the appeal can be filed only in such a Court to which an appeal against an order passed by the Munsiff would lie. It is undisputed that an appeal against a decree passed by the Munsiff would lie to the Civil Judge vide Civil Courts Act. Therefore, an appeal against the order in question passed by the Munsiff would lie only to the Court of the Civil Judge and no revision can be tiled against such an order directly in the Court of the District Judge. Therefore, the said argument advanced by Learned Counsel Hebballi, however attractive it would appear to be at the first blush, is rejected.

8. The long drawn battle between the Revision Petitioner's father and the Respondents-landlords started in 1973, It assumed the character of a finality when CRP 301/78 was dismissed by this Court on 8-1-79. But the JDR., it appears, did not like to take the said decision lying down. When the execution petition was filed he put forth his son and made his son offer obstruction to the delivery of possession of the property. The son has been successful in carrying on the proceedings right from that time onwards till now.

9. The Civil Judge, rightly, on the material placed before him came to the conclusion that the obstructer is not at all a tenant under the landlords and he is instigated by the JDR. to put forth the obstruction. Therefore, he rightly found that the obstruction offered by the Revision Petitioner was at the instance and abetment of his father who was a JDR. in the execution. Therefore, his contention that he is a tenant directly under the landlord dwas, rightly, rejected by Civil Judge.

10. Further this is a Court sitting in revision under Section 115 C.P.C. No error of jurisdiction or no irregular exercise of jurisdiction has been pointed out to me by Learned Counsel Hebballi. Even though it might be possible to take a different view in the matter by taking a second look at the evidence, this Court sitting in revision should not interfere with the conclusion reached by the lower Appellate Court, which is well substantiated by material on record. Therefore, both on facts and law the presentrevision fails.

11. Sri Hebballi then urged that the property in question had been sold by the Respondents-landlords to one Nagappa Talikote under a registered sale deed. Sri Hebballi Learned Counsel for the Revision Petitioner urged that on account of the sale of the property by the original landlord, the decree had becomein executable. It appears that the order under execution was one passed under Section 21(l)(j), which reads as:

'That the premises are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting a new building in place of the premises sought to be demolished.'

Section 26 of the Rent Control Act reads as : -

'Recovery of possession for demolishing building and re-entry -

(1) Where a decree for eviction has been passed by the Court on the ground specified in clause (j) of the proviso to sub-section (1) of Section 21 and the work of demolishing the premises has not beencommenced by the landlord within the period specified in the dccree,the tenant may give the landlord a notice of his intention to occupy the premises from which he has been evicted and if the landlord does not forthwith deliver to him vacant possession of the premises on the same terms and conditions on which he occupied them immediately before the eviction, the tenant may make an application to the Court within six weeks from the date of expiry of the period specified in the decree.'

According to Learned Counsel Hebballi, once the original landlords have sold the property, subjective satisfaction of personal and bona fide requirement under Section 21(l)(j) will cease to exist. Though, the original landlords may have required the premises bona fide and reasonably for the immediate purpose of demolition and reconstruction, according to Shri Hebballi, the purchasers cannot be said to be requiring the premises bona fide and reasonably for the purpose of immediate demolition and reconstruction. The requirement is personal to the person or persons who file the petition, according to Learned Counsel Hebballi.According to him, the decree has become in executable now as the original landlords have ceased to have any right, title or interest in the property. However, it cannot be forgotten that this is a matter purely between the original JDR. and the original DHRs and the purchaser, if he comes on record.

12. Now the purchaser has filed an impleading application in this revision. A similar question arose in Devanidbi Thimmakka -v.- Dodda Thimmappa, ILR l985 KAR 1759. This Court held at page 1761 as: --

The Learned Author Shri Mulla in his C.P.C. 13th Edition, Vol. II, on page 999 has stated as :--

'The cases under the present code held that the legal representative of assignee cannot apply for substitution in the pending proceeding, but must make an application for execution, the application to carry on the proceeding being treated as an application for execution under Order 23, Rule 16.'

Therefore, the remedy of an assignee is not to get himself impleaded in the pending execution proceedings, but he must make a separate application for execution. Therefore, the present impleading application is also untenable under Order 21, Rule 16 C.P.C.'

13. Learned Counsel Gurureddy who has appeared for the purchaser and who has filed the impleading application submitted that this is not an execution proceedings but a revision. What applies to an execution proceedings also applies to a revision. Therefore, the said impleading application is rejected.

14. In the result, the CRP is dismissed. No costs in the revision.


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