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2008 DIGILAW 414 (KAR)

B. Raghuram Shetty v. Arun Bhandary

2008-08-06

D.V.SHYLENDRA KUMAR

body2008
ORDER 1. Writ petitioner claims to be the absolute owner of the property bearing D. No. 3-W-7-618 and 618a and appurtenant lands situated at Kadiri B village coming under the Mangalore City Corporation. It is the version of the petitioner that the property was purchased by the petitioner by means of a registered sale deed dated 21-4-2005, registered as document No. 405/05-06. It is also averred that the property originally belonged to one Mr. Balappa Shetty and after his death Dr. Sharath Kumar Shetty, Dr. Santosh Kumar Shetty and Smt. Zareena Punja have acquired title over the property and it is the very property, the petitioner claim to have purchased in terms of a sale deed dated 21-4-2005 executed by Dr. Sharath Kumar Shetty, Dr. Santosh Kumar Shetty and Smt. Zareena Punja, and last two of them having acted through their attorneys. It is the further averment that the erstwhile owner Mr. Balappa Shetty had leased the property in favour of one Arun Bandari. The said Mr. Balappa Shetty had instituted an eviction petition in HRC No. 234 /1995 under the provisions of Sections 21(1)(a), 21(1)(b), 21(1)(c), 21(1)(o) and Section 21(6) of the Karnataka Rent Control Act, 1961 (an Act in short). 2. This petition came to be allowed only under Section 21(1)(c) of the Act and came to be dismissed on the other grounds namely Sections 21(1)(b), 21(1)(d), 21(1)(o) and 21(6) of the Act. As against this order, while the tenant preferred a revision petition under Section 50 of the Act before the District Judge, at Mangalore in Rent Revision Petition No. 36/2000 the landlord also had preferred revision petition No. 48/2000. The endeavor on the part of the petitioner was to get rid of the order under Section 21(1)(c) of the Act. Endeavor of the landlord was to bolster the order of eviction on the other grounds also. In terms of the order dated 18-11-2000, the learned I Addl. The endeavor on the part of the petitioner was to get rid of the order under Section 21(1)(c) of the Act. Endeavor of the landlord was to bolster the order of eviction on the other grounds also. In terms of the order dated 18-11-2000, the learned I Addl. District Judge, Mangalore, Dakshina Kannada while dismissing the Revision Petition filed by the tenant, allowed the Revision Petition in the sense that the order of eviction was confirmed on additional grounds and as in the mean while, the Karnataka Rent Control Act, 1961 had came to be replaced by the Karnataka Rent Act, 1999, by indicating that the eviction petition was allowed under the corresponding provision of the 1999 Act namely under Section 27(2)(1) and (c) of the Act, and the petition was dismissed under Section 27(2)(m) and (d) of the Act. 3. Two Revision Petitions that had been filed by the tenants before this Court in HRRP No. 85/2004 and HRRP No. 84/2004 came to be dismissed as withdrawn in terms of a Memo filed by the revision petitioner as per the order dated 1-3-2006. 4. It appears, subsequent to the dismissal of this order, the executing Court had been moved by the vendors of the petitioner through their General Power of Attorney holder for implementation of the order of eviction and that Execution Case No. 49/2006 came to be closed in terms of an order dated 14-3-2006 recording as under : The petitioners and their Advocate have filed memo as under : That the petitioners in the above case have received the actual possession of the petition schedule premises and full satisfaction of the decree may be recorded. Accordingly, the above execution petition is not pressed. And based on this, the learned Judge has passed an order as under : In view of the memo dated 13-3-2006 and for the reasons stated therein the delivery of the petition schedule premises in favour of the petitioner /Decree holders is hereby accepted and the Execution Petition is hereby closed as E. F. S. 5. And based on this, the learned Judge has passed an order as under : In view of the memo dated 13-3-2006 and for the reasons stated therein the delivery of the petition schedule premises in favour of the petitioner /Decree holders is hereby accepted and the Execution Petition is hereby closed as E. F. S. 5. It is thereafter, the petitioner appears to have made an effort by filing another Execution Case No. 102/2006 before the very executing Court seeking for implementation of the eviction order passed in HRC No. 234/1995 on the premise that the property in question had been purchased by the petitioner in terms of the sale deed dated 21-4-2005 executed by the eviction petitioners. Ironically, this Execution Case, though figured in the name of the vendors of the petitioner in the cause title, the petitioners have taken care to describe the name of the petitioner /plaintiff as B. Raghuram Shetty in the format showing the name of the petitioner/plaintiff. This Execution case No. 102/2006 (Annexure-B) having been dismissed as not maintainable in view of the closure of the earlier Execution Case, particularly recording full satisfaction as per the order dated 14-7-2006 passed by the executing Court, the petitioner had pursued the matter by way of filing Civil Revision Petition before this Court in Civil Revision Petition No. 653 /2006, but this Revision Petition also being dismissed by this Court in terms of the order dated 17-4-2007 as per Annexure-S as not maintainable, the petitioner pursued his chances before the Revisional Court functioning under Section 50(2) of the Karnataka Rent Control Act, 1961, by filing RRP No. 23/2007 before the District Judge, D.K. Mangalore. This Revision Petition also having been dismissed by the learned District Judge in terms of his order dated 17-4-2007, affirming the order passed by the Executing Court being of the view that there is no illegality committed in dismissing the Execution Case as not maintainable and as there is no ground to interfere with the order present Writ Petition before this Court to get over these orders. 6. In fact, what the petitioner is seeking is for executing an eviction order that had been passed in favour of his vendors and which eviction order had been executed by the vendor themselves through their Power of Attorney and after the executing Court had recorded full satisfaction of the execution of that eviction order. 7. 6. In fact, what the petitioner is seeking is for executing an eviction order that had been passed in favour of his vendors and which eviction order had been executed by the vendor themselves through their Power of Attorney and after the executing Court had recorded full satisfaction of the execution of that eviction order. 7. Several grounds are raised in support of the present Writ Petition filed under Articles 226 and 227 of the Constitution of India. It is urged that the Writ Petitioner has every right to execute the eviction order having stepped into the shoes of his vendors even as early as in the year 2005 when proceedings were still at large either before the Rent Revision Court or before this Court even with regard to the validity of the eviction order, that when once petitioner acquires interest in the property in the year 2005 as per the sale deed dated 21-4-2005, the eviction order can only enure to the benefit of the petitioner that the Execution petition filed by his vendors after they had lost their right, title and interest over the property was not an Execution Petition tenable in law and that the petitioner has every right to seek execution of the eviction order even in terms of Order XXI Rule 7 read with Section 47 of the CPC and that the order passed by the executing Court dismissing the Execution Petition of the petitioner as not maintainable is illegal requires to be set aside even in exercise of supervisory jurisdiction of this Court etc. 8. Sri. Shashi Kiran Shetty, learned counsel appearing for the petitioner has very vehemently urged that the petitioner has been taken for a ride; that the petitioner having purchased the property bona fide in the year 2005, is entitled to claim the benefit of the eviction order on the basis of the Execution pursued by his vendor; that the vendors though had not really sought to execute any order after the sale of the property, person claiming as a Power of Attorney holder of the vendors has played fraud on both the petitioner and the vendors and had brought into existence the order dated 14-3-2006 though it is no order in the eye of law. 9. 9. The proposition that the purchaser like the petitioner has every right to seek relief even before the executing Court in terms of Order XXI, Rule 6, CPC is sought to be supported by an authority, by a single bench decision of this Court in the case of K.M. Srinivasa v. Venkatasami reported in ILR 1998 Kar 907 : (1998) AIHC 1153). It is submitted that the petitioner has been put to great hardship, injustice has occurred to the petitioner and therefore, the matter warrants interference. 10. I have bestowed my anxious consideration to the grounds urged by the petitioner and the submissions made at the bar. In the first instance, I find that the eviction order is an order passed under the provisions of the KRC Act, 1961, an enactment with a social welfare object of protecting tenants from arbitrary and whimsical eviction. It is under the provisions of this Act, the landlord had instituted an eviction petition with certain grounds available under the Act and only to the landlord. The benefit of that eviction order is claimed by the writ petitioner, based on the sale deed of the year 2005, But in reality, while the writ petitioner though may claim to be bona fide third party purchaser of the property subject matter of eviction petition in, reality he is nothing but a third party. The petitioner whether gets any right under such eviction order passed in favour of the erstwhile landlord, the vendor itself is not a legal position free from doubt notwithstanding the authority cited by the learned counsel appearing for the petitioner. While a decree obtained before the civil Court is a decree which can definitely be assigned either for consideration or for any other reason in favour of a third party, who can step into the shoes of decree holder, the situation is not exactly the same in the case of an eviction order, obtained under a legislation meant for regulating eviction of tenants. 11. But that apart, that very eviction order which was in the name of the vendors of the petitioner had been sought to be executed before the executing Court by the very vendors and full satisfaction has come to be recorded by the Court. 11. But that apart, that very eviction order which was in the name of the vendors of the petitioner had been sought to be executed before the executing Court by the very vendors and full satisfaction has come to be recorded by the Court. When once full satisfaction is recorded in respect of the eviction order which had been obtained by the vendors of the petitioner, the matter comes to a close. There is nothing further to be examined whether at the instance of the very eviction petitioner or at the instance of a third party like the petitioner, to re-open the further case to execute anything on the premise that the petitioner had acquired some rights under the same deed dated 21-4-2005. It is not a matter which requires examination subsequently by the executing Court for the purpose of executing an eviction order not in the name of the petitioner and to which the petitioner was not a party. 12. It is not as though the petitioner is claiming any right independent of his vendor. If the eviction order had already been implemented nothing remains for the executing Court to examine further and the execution petition said to have been filed by the petitioner before the executing Court which was ill advised and a petition which is not tenable in law has been rightly rejected by the executing Court and the same has been affirmed by the Revisional Court. Absolutely no scope or need for interference in a matter of this nature under Article 227 of the Constitution of India. 13. Writ Petition is dismissed. 14. Petition dismissed.