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2008 DIGILAW 19 (KAR)

P. Janakaraj v. S. Balasubramanya

2008-01-09

AJIT J.GUNJAL, GUNJAL

body2008
ORDER Ajit J. Gunjal, J. Even though the matter is listed for preliminary hearing, with the consent of both the Counsel, it is taken up for final disposal. 2. The backdrop of the case can be summarised as follows: During the course of this order, the parties would be referred to as per the ranking in the executing Court. Way back in the year 1994, the first decree holder initiated eviction proceedings against the judgment debtors under Section 21(1)(h) of the Karnataka Rent Control Act, 1961 (for short, ‘the Act’). It is not necessary for us to look into the averments made in the rent control proceedings except noticing that the petition was for bonafide requirement. The Court of the first instance allowed the eviction petition, as against which a revision was preferred. The said revision was dismissed as against which the judgment debtors preferred HRRP No. 1870/1996 before this Court. This Court confirmed the findings recorded by the Court below. While disposing of the revision petition, this Court observed thus: “After arguing the matter for some time, Smt. Rajarajeswari, learned Counsel appearing for the petitioners, submitted that if petitioners are given three years’ time from today to hand-over vacant possession of the premises in question, the petitioners will not press this revision petition.” The first decree holder, on the fond hope that the longdrawn litigation would be put to an end, conceded for granting of three years’ time. Hence the aid revision petition was disposed of directing the judgment debtors to quit and deliver vacant possession within three years. An undertaking was also directed to be filed to that effect. One of the conditions was that the petitioners shall voluntarily hand-over vacant possession of the premises in question to the respondents on or before 31.12.1999 To that effect, an affidavit was also filed. But however the fond hopes were belied. As like any other abrasive tenants, the judgment debtors did not choose to vacate the premises, pursuant to the affidavit and the solemn undertaking given to this Court. This compelled the first decree holder to initiate contempt proceedings in CCC (Civil) 2030/2000. This Court, having regard to the undertaking given by the judgment debtors, found that it is not open for the judgment debtors to contend that they have not committed any contempt of the Court. This compelled the first decree holder to initiate contempt proceedings in CCC (Civil) 2030/2000. This Court, having regard to the undertaking given by the judgment debtors, found that it is not open for the judgment debtors to contend that they have not committed any contempt of the Court. This Court, while accepting the contempt petition, has quoted with approval, the principle laid down by the Division Bench of this Court in the case of D.M. SAMYULLA Vs. COMMISSIONER, CORPORATION OF CITY OF BANGALORE reported in 1990(1) KLJ 352: “The principle laid down in the said decision is that a party who knows an order, whether it is null or valid, regular or irregular, cannot be permitted to disobey it and it would be dangerous to allow the party to decide as to whether an order was null or void and whether it was regular of irregular. In our opinion, such a principle would be attracted in cases where there has been an order of the Court against any particular person or authority and that person are authority takes the stand that the order of the Court is illegal or it is bad for not following any mandatory procedure or takes upon himself or itself to disobey the order of the Court.” This passage is quoted by the Division Bench approving the decision rendered by the Court of appeal in HADKINSON Vs. HADKINSON reported in 1952(2) ALL E.R. 567. Consequently, the said contempt petition was allowed in part holding that the first judgment debtor was guilty of Civil Contempt and was convicted and sentenoed for such civil contempt to pay a fine of Rs.2000/-. It was also further directed that the said fine shall be paid within a period of one month from the date of order and in default, he shall be detained in civil prison for a period of 15 days. Insofar as the second judgment debtor was concerned, she was discharged on the ground that she was a widow and was aged 80 years. The contempt Court also observed that even though the affidavit was filed on behalf of both the judgment debtors by the first judgment debtor, since the second judgment debtor did not sign the affidavit, she was discharged. This order was passed on 29th April 2004. The first decree holder waited patiently so that the judgment debtor would quit and deliver the vacant possession. This order was passed on 29th April 2004. The first decree holder waited patiently so that the judgment debtor would quit and deliver the vacant possession. But however, that did not happen. Hence they were constrained to initiate execution proceedings in Execution petition No. 13/2007. The said Execution Petition is filed on 05.04.2007. 3. Incidentally, it is required to be noticed that the property in question was sold by the first decree holder in favour of the decree holders 2 and 3, pursuant to a registered sale deed dated 18.06.2007. Hence they joined decree holder No. 1 in filing the execution petition. In the said execution proceedings, two applications were filed by the judgment debtors. 4. I.A-2 is under Section 47 of the Code of Civil Procedure requesting the Court to dismiss the execution petition contending that the decree sought to be enforced has become inexecutable. 3. I.A-3 is filed under Order 21, Rule 29 of the Code of Civil procedure requesting the Court to stay all further proceeding of the execution until the disposal of the suit in O.S.No.74/2007 pending on the file of the Principal Civil Judge (Jr.Dn.). Raichur. 6. The decree holders filed a detailed objection to both the applications, inter alia, contending that it is not open for the judgment debtor to contend that the decree has become inexecutable. They would also contend that the suit filed by the judgment debtors is frivolous. Hence the question of invoking the provisions of Order 21, Rule 29 is impermissible. 7. The executing Court having regard to the rival contentions, was of the opinion that it was not open for the judgment debtors at this point of time to contend that the decree is inexecutable, inasmuh as, the decree has become final. More over, the judgment debtors, having given solemn undertaking to this Court in the rent control proceedings, could not raise a contention that the decree is inexecutable, notwithstanding the fact that the property has been transferred in favour of the decree holders 2 and 3 during the pendency of the execution proceedings. The executing Court has invoked the provisions of Section 146 read with Order 21, Rule 16 of the Code of Civil Procedure to hold that it is permissible for the purchasers to step into the shoes of the first decree holder to execute the decree. The executing Court has invoked the provisions of Section 146 read with Order 21, Rule 16 of the Code of Civil Procedure to hold that it is permissible for the purchasers to step into the shoes of the first decree holder to execute the decree. Insofar as the staying of the execution proceedings pending disposal of the suit, the executing, Court was of the opinion that the suit filed by the judgment debtors itself may not be maintainable, But however, was of the opinion that a valid decree cannot be scuttled by invoking the provisions of Order 21, Rule 29 of the Code of Civil Procedure. Consequently, both the applications IA-2 under Section 47 of CPC and I.A-3 under Order 21, Rule 29 of CPC were dismissed. The possession warrant was also issued. 8. Mr. Praveen Kumar Raikote, learned Counsel appearing for the judgment debtors would contend and press into service only one contention. He submits that during the pendencey of the execution proceedings, the property in question was sold by the first decree holder in favour of decree holders 2 and 3. He further submits that since the eviction decree was for bonafide use and occupation, the lis for the bonafide requirement of first decree holder does not survive. Hence the decree becomes inexecutable. 9. Mr. P.S. Malipatil, learned Counsel appearing for the decree holders submits that, notwithstanding the absence of an assignment of the decree in the sale deed, it is always open for the purchaser to execute the eviction decree, having regard to the provisions of Section 146 read with Order 21, Rule 16 of the Code of Civil Procedure. He further submits that once there is a decree of eviction, the executing Court cannot go behind the decree and record a finding and set at naught the order passed by the trial Court which had culminated in a final order before this Court in HRRP No. 1870/1996. To say the least, the applications filed by the judgment debtors and the contentions raised are clearly abuse of the process of the Court. 10. Most of the facts are not disputed. The first decree holder initiated eviction proceedings against the judgment debtors which attained finality before this Court in the revision petition. A solemn undertaking was given by the judgment debtors before this Court that they would quit and deliver vacant possession as on 31.12.1999. 10. Most of the facts are not disputed. The first decree holder initiated eviction proceedings against the judgment debtors which attained finality before this Court in the revision petition. A solemn undertaking was given by the judgment debtors before this Court that they would quit and deliver vacant possession as on 31.12.1999. An affidavit is also filed to that effect. Notwithstanding, filing of such an affidavit, the judgment debtors would not choose to vacate. Then contempt proceedings were initiated by the first decree holder. The said contempt petition was accepted convicting the first judgment debtor. Indeed an identical contention was raised in the contempt petition to the effect that the judgment and the decree has become inexecutable, having regard to Section 31 of the Act. Such a contention did not find favour with the contempt Court. 11. The passage which is quoted above from the Division Bench ruling would clearly laid down the law that having suffered an order, whether valid or invalid it was not open for the contemnor to contend that he is not liable to be convicted in the contempt proceedings as the decree itself is null and void. The principle is that the order of eviction, whether it is null or valid, regular or irregular cannot be permitted to be disobeyed. 12. It is trite that a contention is raised by the judgment debtor that the decree becomes inexecutable having regard to the fact that decree holder No. 1 has parted with the property in favour of decree holders 2 and 3 and the need of decree holder No. 1 does not survive. In this regard, it is useful to refer to the provisions of Section 146 of CPC. Section 146 would read as under: “146. In this regard, it is useful to refer to the provisions of Section 146 of CPC. Section 146 would read as under: “146. Proceedings by or against representatives:— Save as otherwise provided by this Code or by any law for the time being in force, where any proceedings may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him.” Order 21 Rule 16 Explanation reads thus : Explanation: Nothing in this rule shall affect the provisions of Section 146, and a transferee of rights in the property, which is the subject matter of the suit, may apply for execution of the decree without a separate assignment of the decree as required by this rule.” A harmonious reading of Order 21, Rule 16 Explanation with Section 146 of the Code of Civil Procedure makes it abundantly clear that where any proceedings may be taken or application made by or against any person claiming under him. In the case on hand, it is to be noticed that the rent control proceedings have attained finality. It is only during the pendency of the execution proceedings, the first decree holder has parted with the property in question. Hence, it is not open for the judgment debtors to contend that the first decree holder, having lost title to the property, cannot join hands with the subsequent purchasers in executing the decree. The scope of Section 146 fell for consideration before the Apex Court in the case of Smt. Baila Bala Dassi Vs. Smt. Nirmala Sundari Dassi and Another, reported in AIR 1958 SC 394 . The Apex Court has observed thus : “8.... We are not disposed to construe S.146 narrowly in the manner contended for by Counsel for the first respondent. That section was introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. That section was introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. It has been held by a Full Bench of the Madras High Court in Mumbai Chettiar v.Govinddoss Krishnadoss, ILR 44 MAD 919 : (AIR 1921 Mad 599) (E) that the assignee of a part of a decree is entitled to continue an execution application filed by the transferor deoreeholder. Vide also Moidin Kutty V.Dorai swami, ILR (1952) Mad 622: ( AIR 1952 Mad 51 ) (F). The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the appellant to be brought on record as an appeal in Appeal No. 152 of 1955 must be held to be maintainable under S.146.” 13. Having regard to the interpretation given to Section 146 by the Apex Court, I am of the view that it is always open for the decree holders including the purchasers to execute the decree. Indeed Section 146 was introduced for the first time in the Code of Civil Procedure in the year 1908 with the object of facilitating the exercise of rights by persons in whom they came to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. 14. Order 22, Rule 10 of the CPC also empowers that any subsequent assignee or a purchaser can also prosecute the proceedings, Indeed, this Court, in the case of K.M. SRINIVASA Vs. VENKATASAMI AND ANOTHER reported in 2000(3) KLJ 112 was considering the scope of Section 146 read with Explanation under Order 21, Rule 16 of the CPC. 14. Order 22, Rule 10 of the CPC also empowers that any subsequent assignee or a purchaser can also prosecute the proceedings, Indeed, this Court, in the case of K.M. SRINIVASA Vs. VENKATASAMI AND ANOTHER reported in 2000(3) KLJ 112 was considering the scope of Section 146 read with Explanation under Order 21, Rule 16 of the CPC. This Court, while interpreting the scope of the provisions has observed that legal position is crystal clear that the petitioner therein who is a transferee of the property which was the subject matter of the decree in execution is entitled to apply for execution of the decree without a separate assignment thereof since he claims to have lawfully acquired the property through the decree holder who was its rightful owner. 15. Insofar as the decisions relied on by Mr. Praveen Kumar Raikote, learned Counsel is concerned, the first of it is reported in ILR 1991 Kar 3954 in the case of YASIMSAB FAKRUDDINSAB DORI Vs. BASAPPA. It is to be noticed that was a case where the proceedings were still pending and the landlord had died and the question was whether the proceedings should be continued by the LRs. This Court, having a regard to the scope of Section 21 (1)(h) of the Act which is since repealed has observed that since the death of the landlord has taken place during the pendency of the rent control proceedings, the right to sue does not devolve on the LRs. But however, that is not the case here. This is a case where the proceedings have attained finality and the said finality is on the basis of a solemn undertaking given by the judgment debtors. Certainly it is not open for the judgment debtors to resile from their solemn undertaking given to this Court that too, by an affidavit. More so, when they had invited contempt proceedings and the said contempt proceedings having been accepted by this Court and judgment debtor No.1 was found guilty of civil contempt and so convicted and sentenced to pay fine of Rs. 2000/-. Hence the decision which is sought to be Pressed into service has no application. 16. Another decision which is pressed into service is the case of SHAIK JEHANGIR Vs. SMT. 2000/-. Hence the decision which is sought to be Pressed into service has no application. 16. Another decision which is pressed into service is the case of SHAIK JEHANGIR Vs. SMT. S. KAUSHILYABAI AND OTHERS reported in 1987 (Supp.) SCC 630 also does not come to the aid of the judgment debtor inasmuch as that was also a case where during the pendency of the eviction of proceedings the property was sold. Hence the question of bonafide requirement of the landlord did not survive for consideration. 17. In both the decisions, what fell for consideration is the bonafide requirement of the landlord. In one case, the landlord had died and in the other case, the landlord had parted with the property. That is not the case here. Till 2007, when the execution petition was filed, the decree holder continued to be the owner. But however, during the pendency of the execution proceedings the property is transferred in favour of the decree holders 2 and 3. In fact, this is where the provisions of Section 146 read with Order 21, Rule 16, Explanation and Order 22, Rule 10 would come into play. Hence the said decisions will not come to the aid of the judgment debtors. 18. To my mind, the executing Court was justified in rejecting both the applications. Before parting with the case, it is necessary to note that no litigant is permitted to wriggle out of a situation and a solemn undertaking given to this Court by way of an affidavit. The Courts cannot brook the attitude of the judgment debtors for violating the solemn undertaking given. A litigant when he gives an undertaking is bound by it, in all circumstances. The impunity with which the judgment debtors have defied the law and the undertaking and have put innumerable hurdles in the way of the decree holders in getting the possession, to say the least, should be deprecated. This kind of attitude is required to be curbed at the threshold. Notwithstanding the conviction in a contempt proceedings, the judgment debtors are perpetuating their high handedness, to any the least, nothing but gross abuse of the process of the Court. The Apex Court, in the case S.P. CHENGALARAYA NAIDU, DEAD BY LRs. Vs. JAGANNATH, DEAD BY LRs. AND OTHERS reported in (1994) 1 SCC 1 has ruled thus : “5..... Notwithstanding the conviction in a contempt proceedings, the judgment debtors are perpetuating their high handedness, to any the least, nothing but gross abuse of the process of the Court. The Apex Court, in the case S.P. CHENGALARAYA NAIDU, DEAD BY LRs. Vs. JAGANNATH, DEAD BY LRs. AND OTHERS reported in (1994) 1 SCC 1 has ruled thus : “5..... The principle of “finality of litigation” cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Court of law are meant for imparting justice between the parties. One who comes to the Court. must come with clean hands. We are constrained to say that more often than not, process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.” (emphasis supplied) Consequently, this petition is sans merit. Petition stands rejected. Having regard to the conduct of the judgment debtors, they are required to be saddled with cost quantified at Rs.25,000/- (Rupees Twenty Five Thousand only).