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Bhame Amma Vs. Venkappa Bhatta and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 146 of 1960
Judge
Reported inAIR1961Ker178
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151
AppellantBhame Amma
RespondentVenkappa Bhatta and ors.
Appellant Advocate V.R. Krishna Iyer and; R. Krishnaswamy, Advs.
Respondent Advocate V.P. Gopalan Nambiar and; V. Bhaskaran Nambiar, Advs. for Respondent No. 1
DispositionPetition dismissed
Cases Referred and Ahmad Abdul Sukkoor v. Vallabhadas Kanji Firm
Excerpt:
- .....a stay of delivery in execution of a small cause decree which culminated in a court sale of the suit property in favour of the 1st respondent. when the 1st respondent applied for deliveryof possession in pursuance of his court-purchase, the petitioner offered resistance; whereupon the 1st respondent applied for removal of the resistance. the executing court by an order dated 8-8-1958 repelled the resistance and ordered delivery. soon thereafter the petitioner filed o. s. no. 478 of 1958 to establish his rights to the present possession of the property and applied for a stay of the delivery proceedings in the small cause suit. the court below, on taking some evidence by the issue of a commission for local inspection to ascertain whether the house number of the petitioner seen in the.....
Judgment:
ORDER

M. Madhavan Nair, J.

1. The order sought to be revised in this case is one granting a stay of delivery in execution of a Small Cause decree which culminated in a court sale of the suit property in favour of the 1st respondent. When the 1st respondent applied for deliveryof possession in pursuance of his court-purchase, the petitioner offered resistance; whereupon the 1st respondent applied for removal of the resistance. The executing court by an order dated 8-8-1958 repelled the resistance and ordered delivery. Soon thereafter the petitioner filed O. S. No. 478 of 1958 to establish his rights to the present possession of the property and applied for a stay of the delivery proceedings in the Small Cause suit. The court below, on taking some evidence by the issue of a commission for local inspection to ascertain whether the House Number of the petitioner seen in the records produced by him relates to the house in the suit property, came to the conclusion that there is prima facie evidence that the petitioner is in possession of the suit property and is actually living in the house in the suit properly and in that view granted a stay of the delivery proceedings by an interlocutory order.

2. In this revision petition the learned counsel for the petitioner contended that the provisions invoked in the application for stay, viz., Order 21, Rule 29 and Ss. 94 and 151 of the Code of Civil Procedure, do not apply to the instant case. It is true that Order 21, Rule 29 and Section 94 have little relevance in the matter; but as pointed out by the learned counsel for the respondent, the prayer for a stay of the delivery proceedings can be maintained under Section 151, C. P. C. A Civil Court in the exercise of its powers under Section 151 C. P. C. can stay proceedings in execution of a decree in an independent suit if the court comes to the conclusion that in the ends of justice or to prevent abuse of the process of court such a stay is necessary. See Kondapaneni Raghavaiah v. Inguva Lakshminarayana, (S) AIR 1955 Andh Pra 4 and Ahmad Abdul Sukkoor v. Vallabhadas Kanji Firm, AIR 1950 Mad 219. If a person is actually in possession of the property and it is sought to be delivered in a proceeding to which he was not a party it is certainly a matter that can be regarded as an abuse of the process of court and as such stayed by a Civil Court in exercise of its inherent powers until the matter is investigated and adjudicated against the person in possession of the property.

3. No question of jurisdiction, either express or want of it, arises in this case; nor do I think there is any material irregularity in the procedure adopted by the court below. In the circumstances, the C.R.P., fails and is hereby dismissed. But, in the circumstances of the case I make no order as to costs.

4. This being a suit in which the auction purchaser has been restrained from taking possession of the property purchased by him in court sale as early as 1957, the trial of the suit has to be expedited in the interests of justice, I direct that the learned Munsiff of Kasaragod will bestow particular attention to the matter and when the case is ripe for trial he would post the case for a day to day trial and see that the suit is disposed of within a period of two months of the receipt of the records in his Court. The time fixed above is expected to be taken as peremptory.


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