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2000 DIGILAW 799 (KAR)

R. Prakash v. Ramesh Kumar Jain

2000-12-01

R.GURURAJAN

body2000
JUDGMENT R. Gururajan, J.—Defendants are Appellants before this Court. They are challenging the order dated 4.9.2000 passed on I As No. 1 and 2 in OS No. 1256 of 2000 by the VIII Additional City Civil Judge, Bangalore. The defendants are the landlords of the suit schedule premises and the Respondents were the tenants. An application was filed by the Appellant in HRC No. 1 of 1999 on the file of the Small Causes Judge, Bangalore. The said application filed by the Appellant-landlord for eviction of the residential premises was allowed and the tenant was directed to vacate and hand over vacant possession on or before 31.10.1999. The said order came to be passed pursuant to the compromise petition filed by the Appellants and the Respondents. 2. These being the facts of the case, the present Respondents filed a suit in OS No. 1256 of 2000 before the City Civil Court seeking for a declaration declaring that they are having an independent tenancy rights. They also sought for stay of the operation of the decree passed in HRC No. 1 of 1999, dated 6.2.1999 and also stay of the execution proceedings in Ex. No. 2778 of 1999. Appellants entered appearance and filed a detailed statement of objections along with an application for vacating the ex-parte stay order granted in the said suit. Learned Civil Judge heard the matter and rejected the said application filed by the Appellants for vacating the exparte stay order and allowed the application filed by the Respondents. It is this order that is challenged before me by the Appellant landlord. 3. Respondents have entered caveat. With the consent of the parties the matter is taken up for final disposal on merits. 4. Learned Counsel for the Appellant-landlord contended that the Respondent tenant has already filed an application objecting to the execution of the decree in the execution proceedings under Order 21, Rule 97 of the Code of Civil Procedure. He argued that having availed the remedy before the executing Court, he cannot have the stay of the very execution in which he has already filed objections before the executing Court executing the decree in favour of the Appellant. His submission is that the learned Trial Judge without considering these aspects of the matter has exercised his discretionary power in an arbitrary manner requiring my interference. 5. His submission is that the learned Trial Judge without considering these aspects of the matter has exercised his discretionary power in an arbitrary manner requiring my interference. 5. Per contra, learned Counsel for the contesting Respondent argued that there is no bar for maintaining a suit in a matter like this. His further argument is that the earlier order is not binding on him and even after filing objections he is entitled not only to maintain a suit but also to seek an order of stay. 6. After hearing the rival pleas, made by the learned Counsel on either side, I once again perused the order of the trial Judge. The admitted facts are that the Appellant herein filed HRC No. 1 of 1999 and an order was passed in terms of the compromise ordering eviction of the premises by October, 1999. The said order is being executed in Ex. Case No. 2778 of 1999. Objections have been filed by the present Respondent objecting to the execution of the decree and the said application is pending. It is thereafter he has filed the present suit and has obtained an order of stay, as I see from the order of the learned trial Judge. Learned trial Judge after noticing the arguments on either side has ruled that a prima facie case is made out before him. According to him the balance of convenience lies more in favour of the Respondent and irreparable injury is caused to the Respondent if the interim stay is not granted on the facts of this case. After applying my mind to the facts of the case, argument of the counsel on either side, and the impugned order, I am of the view that the Respondents having availed a remedy by way of objection before the Court though can maintain a suit, cannot have the benefit of an injunction on the peculiar facts of this case. Admittedly, a compromise petition has been arrived at and time was granted till October, 1999. It is after the compromise and that too after the execution case is filed the present suit is filed. In these circumstances, I am of the view that balance of convenience lies more in favour of the Appellant herein. More injury would be caused to the Appellant in view of an order in his favour. It is after the compromise and that too after the execution case is filed the present suit is filed. In these circumstances, I am of the view that balance of convenience lies more in favour of the Appellant herein. More injury would be caused to the Appellant in view of an order in his favour. A litigant who obtains an order cannot be permitted to suffer a stay of an execution particularly when that very person has already filed his objections to the execution. It is not as if the Respondent is being evicted immediately. The execution Court would hear the objector and then pass appropriate orders. 7. In the case of Paramound Industries Vs. C.M. Malliga, ILR (1991) KAR 254 this Court has noticed the effect of Order 21, Rule 97 of the Code of Civil Procedure and framed the following three points for consideration. 1) Whether it is open to a person who is not made a party to an order of eviction or a decree for possession, to obstruct execution or a decree for possession by filing objections to the execution? 2) If obstruction is offered by filing objections by such person, even if no application is filed under Order 21, Rule 97 of the Code of Civil Procedure by the decree holder to remove such obstruction, whether the executing Curt can proceed to execute the decree without enquiring into the objections or removing the obstruction offered to the execution of a decree for possession or the order of eviction? 3) Whether the only remedy available to a person resisting execution is to file a suit after the order of eviction or decree for possession is executed and he is dispossessed? This Court answered the above points in the following manner. Point No. 1 It is open to a person in possession of an immovable property, not being a party to the decree for possession or ejectment or an order of eviction passed under the Act, to obstruct the execution either by filing an objection to the execution before the delivery warrant is issued; or to obstruct the execution of the delivery warrant. Point No. 2 The executing Court cannot proceed further in the execution without determining the objections filed by such a person in terms of Rules 98 to 103 of Order 21 of the Code of Civil Procedure in the same manner as a suit, irrespective of the fact whether or not an application is filed by the decree-holder for removal of obstruction under Rule 97 of Order 21 Code of Civil Procedure. Point No. 3 It is open to the person in possession of an immovable property in his own right and not through a judgment debtor to resist execution and establish his right, title and interest to the Immovable property which is the subject matter of the decree for possession or order for eviction. He need not wait until he is dispossessed in the execution of the decree for possession or order of eviction. In the event objections are filed by such a person, the executing Court shall have to decide the same in the same manner as a suit. It is also open to him to file a suit for declaration of title and permanent. 8. This Court in the case of M/s. Paramound Industries (cited supra) has no doubt ruled that it is open to the person in possession of an immovable property in his own right to resist an execution and establish his right, title and interest to the Immovable property which is the subject matter of the decree for possession or order for eviction by way of a suit. In the case on hand by the conduct of the Respondent it cannot be said that he has not resisted to execution. He still has an opportunity to resist that execution. In that view of the matter getting an order of stay of the entire execution proceedings after filing his objections in execution proceedings in my opinion is untenable. 9. The Supreme Court in the case of Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, AIR 1997 SC 856 noticed that Order 21, Rule 97 of the Code of Civil Procedure is a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree holder and whose attempts at executing the said decree meet with rough weather. Vs. Rishikesh Prasad Jaiswal and another, AIR 1997 SC 856 noticed that Order 21, Rule 97 of the Code of Civil Procedure is a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree holder and whose attempts at executing the said decree meet with rough weather. It has also ruled that Order 21, Rule 97 of the Code of Civil Procedure would remain a complete code and the sole remedy (underlined by me) for the concerned parties to have their grievances once and for all finally resolved in execution proceedings themselves. 10. In the light of the categorical pronouncement by the Hon'ble Supreme Court of the remedy of objections under Order 21, Rule 97 of the Code of Civil Procedure being the sole remedy (underlined by me), I am of the view that the present order of stay of execution proceedings in a suit cannot be ordered on the facts of the case. In these circumstances, this appeal is accepted. The order of the trial Judge holding that greater injury is caused to the Respondent is reversed. IA filed by the Respondent is dismissed and the IA filed by the Appellant is allowed. It is made clear that any of my findings in that case should not be construed as any finding on merits of the dispute between the parties. The executing Court is directed to decide the objections and pass orders in accordance with law without being in any way influenced by this order. No costs.