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2001 DIGILAW 53 (KAR)

JEROME SALDANHA v. KAUSALYA PURUSHOTHAMA

2001-01-15

K.L.MANJUNATH

body2001
K. L. MANJUNATH, J. ( 1 ) THIS is a revision petition filed by the decree-holder who had obtained an order of eviction against the respondent in HRC No. 12 of 1989 on the file of Munsiff at Mangalore. An eviction was ordered to evict the respondent herein in the above House Rent Case proceedings by the Trial court on 25-3-1989. Petitioner lodged an execution petition to take possession of the property in question in Exc. No. 695 of 1989. The Executing court issued an order of delivery warrant directing the Court Bailiff to put the decree-holder in possession of the property in question by evicting the respondent-judgment debtor. At the request of the decreeholder the Court also ordered for the police help to execute the decree. Accordingly, the Court Bailiff put the decree-holder in possession of the property and the decree-holder also accepted delivery of possession and delivery receipt was also executed by the decree-holder on 6-3-1990. On the same day he has also executed an inventory for having taken possession of the moveable properties of the judgment-debtor therein. In addition to that, he has also executed an indemnity bond in favour of the court for having obtained possession of the moveables of the judgmentdebtor. Thus, it is clear that the Court Bailiff has given an effective delivery by putting the decree-holder in actual possession of the premises in question and thereby the decree has been executed to the full satisfaction of the decree-holder in view of the delivery receipt executed by the decree-holder. ( 2 ) ON 4-4-1990 Counsel for the decree-holder filed a memo to the Executing Court, which reads aa under:"the respondent-JD in the above execution case was evicted by the Court Amin and the petition premises were locked and possession given to the petitioner. But, that same night the respondent with her men forcibly broke open the lock and re-entered possession of the petition premises. She has also filed R. R. P. No. 70 of 1990 before District Judge of Dakshina Kannada, Mangalore". The Executing Court, by recording the memo filed by the decree-holder has closed the execution petition and the order sheet dated 5-4-1990 reads as under:"sri JJMP files Memo stating that judgment-debtor again got possession of petition premises by broke open the lock and now judgment-debtor filed CRP. Hence execution petition may be closed. In view of the memo execution petition is closed". Hence execution petition may be closed. In view of the memo execution petition is closed". ( 3 ) LOOKING into the order sheet maintained by the Executing Court, one can say that delivery of possession was accepted by the decreeholder and even according to the decree-holder, judgment-debtor by breaking open the lock has trespassed upon the property in question and has been squatting there as a trespasser. ( 4 ) ON 5-2-1996, present petitioner filed a second execution petition in exc. No. 308 of 1996 on the file of the Munsiff at Mangalore to execute the very same decree passed in HRC No. 12 of 1989 which was executed earlier in Exc. No. 695 of 1989. Judgment-debtor who entered appearance in the second execution petition raised an objection to the effect that second execution petition was not maintainable and therefore he sought for dismissal of the execution petition. Munsiff after hearing the parties, by order dated 24-2-1997 came to the conclusion that second execution petition was not maintainable, that the decree-holder has to file a separate suit for possession and accordingly execution petition was closed. Against the said order, present revision petition is filed by the decree-holder. ( 5 ) IT is contended before me by the Counsel for the petitioner that petitioner can maintain a second execution petition in view of the decision rendered by the High Court of Assam in Ghanashyam Das Mour agarwalla v Fatik Chandra Das. Relying upon the said decision, it is contended by the Counsel for the petitioner that dismissal of execution petition by the Munsiff is incorrect and therefore requested this Court to set aside the order. Per contra, learned Counsel for the respondent contended that there is no provision in the CPC to execute the decree twice and it is further contended by the learned Counsel that effective delivery has taken place by putting the petitioner in possession of the property in question and in view of the delivery receipt issued by the decree-holder, it is not open for him to contend that he has not been put in possession of the property actually. ( 6 ) GHANASHYAM Das Mour Agarwalla's case cited supra, relied upon by the Counsel for the petitioner is not helpful to him for the following reasons: in the said case, Court Bailiff has put the decree-holder therein by way of symbolic possession and the decree-holder was not put in actual possession of the property in question in the report of the Court Bailiff; it was made it very clear that only symbolic possession was delivered to him in respect of the land in question, but no possession was given in respect of the house. In the said case, it was contended by the decreeholder that the report of the Court Bailiff should not be accepted since he was not put in possession of the actual property. Therefore, the decision relied upon by the petitioner/decree-holder is of no assistance. The facts involved in the said case and the facts involved in the present case are totally different and distinguishable. ( 7 ) THE decree in respect of an immovable property has to be executed and the decree-holder has to be put in possession pursuant to Order 21, rule 35 of the CPC. In the instant case, delivery warrant was issued earlier and based on the report of the Court Amin and upon the request of the petitioner, police help was also ordered by the Executing Court in exc. No. 695 of 1989. The delivery receipt dated 6-3-1990 clearly shows that the petitioner herein has obtained actual possession of the property by evicting the judgment-debtor therein. On 6-3-1990 when the respondent/judgment-debtor refused to deliver possession of the property and as he refused to take possession of moveables of him, petitioner herein has also taken possession of the moveables worth Rs. 1,411-00 and the inventory has been drawn on the same day, petitioner herein has taken possession of the moveables. Subsequently, he has also executed an indemnity bond in favour of the Court having admitted handing over of moveables by the Court Bailiff to the decree-holder and the same has also been filed in the Court of Munsiff on 8-3-1990. ( 8 ) THUS it is clear that petitioner herein has obtained actual possession of the property. Having obtained possession of the property, filed a memo to the Court of Munsiff in the executing proceedings on 5-4-1990 admitting the fact of taking actual possession of the property. ( 8 ) THUS it is clear that petitioner herein has obtained actual possession of the property. Having obtained possession of the property, filed a memo to the Court of Munsiff in the executing proceedings on 5-4-1990 admitting the fact of taking actual possession of the property. He has also mentioned in the memo referred to above, that respondent/judgment-debtor has taken possession of the property by breaking open the lock and has re-entered possession of the premises. Therefore, he requested the Court not to accept the Amin's report. ( 9 ) FROM looking into the above memo filed by the petitioner/decreeholder this Court cannot find any mistake in the report submitted by the court Amin. The decree-holder himself has accepted delivery of the property and he has also admitted that on the same night judgmentdebtor by breaking open the lock had re-entered into the premises in question. It is clear from the records that the decree has been executed by the Court Bailiff. When once the decree is executed, there is nothing further for the Court to continue. If the judgment-debtor has re-entered into the premises in question by breaking open the lock, it will be a fresh cause of action for the decree-holder; and his remedy is elsewhere and not by lodging the second execution petition. It is not the case of the petitioner/decree-holder that the Court Bailiff did not put him in actual possession of the property, but it is his specific case that on the same night judgment-debtor has broke open the lock. In other words, possession of the judgment-debtor as on today is that of a trespasser and this court cannot come to the conclusion that still there exists the relationship of landlord and tenant. Under the circumstances the petitioner is precluded from lodging the second execution petition and there is no provision either under Order 21, Rule 35 of the CPC or under Section 47 of the CPC to enable the decree-holder to lodge a second execution petition. Under the circumstances the petitioner is precluded from lodging the second execution petition and there is no provision either under Order 21, Rule 35 of the CPC or under Section 47 of the CPC to enable the decree-holder to lodge a second execution petition. Therefore, I am of the opinion that having regard to the admission made by the decree-holder himself by filing a memo referred to above, he is precluded from lodging the second execution petition, delivery of possession by the Court Bailiff in the earlier execution petition is admitted by him and therefore the order passed by the Munsiff in rejecting the second execution petition as not maintainable is correct and this Court cannot find fault with the order passed by the Munsiff, as he has not committed any illegality or exceeded his jurisdiction. Accordingly this petition is dismissed by holding that second execution petition is not maintainable and parties to bear their own costs. --- *** --- .