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2014 DIGILAW 75 (KER)

Fathimath Naseera v. Aboobacker Haji

2014-01-29

K.T.SANKARAN, P.UBAID

body2014
JUDGMENT K.T. Sankaran, J. 1. The petitioners in the Original Petitions are tenants of buildings belonging to the respondents. The Rent Control Petitions were filed by the landlord against the tenants under S. 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act. In the Rent Control Petitions, compromise petition was signed and filed by the tenants and the landlord. Clause (3) of the compromise reads as follows: "3. The respondent admits that the rent payable from February 2012 is in arrears and he has no objection for passing an order of eviction under S. 11(2)(b) of Kerala Buildings (Lease and Rent Control) Act 2 of 1965. She prays for five months period for payment of arrears of rent as contemplated under S. 11(2)(c) of the Act and the petitioner has no objection for the same. If arrears of rent is not paid within five months the petitioner is entitled to execute the order of eviction." 2. The tenants did not pay the arrears of rent within the time stipulated in me compromise. After me expiry of five months referred to in the compromise, the landlord filed Execution Petitions. The landlord also filed applications to dispense with notice to the tenants. Since two years had not elapsed from the date of the order, the executing court allowed the application to dispense with notice and ordered delivery. 3. Delivery was ordered to be effected on or before 23.1.2014. Amin attempted to deliver the property on 21.1.2014. The tenants obstructed delivery. These Original Petitions were filed on 23.1.2014 praying to set aside the proceedings dated 10.1.2014 in the Execution Petitions dispensing with notice to the tenants and ordering delivery of the property. 4. Sri. T. Madhu, the learned counsel for the petitioners, submitted that in view of R. 105 of Order XXI of the Code of Civil Procedure, the executing court was not justified in ordering delivery without issuing notice to the respondents (tenants) in the E.P. The learned counsel also submitted that R. 105 would override R. 22 of Order XXI. 5. Sri. D. Krishna Prasad, the learned counsel appearing for the respondent/landlord, submitted that R.105 would apply to only those cases where the executing court had issued notice to the respondents and this is clear from sub-rule (3) of R.105. 6. To understand the rival contentions, it is apposite to extract R. 22 and R. 105 of Order XXI. "22. 5. Sri. D. Krishna Prasad, the learned counsel appearing for the respondent/landlord, submitted that R.105 would apply to only those cases where the executing court had issued notice to the respondents and this is clear from sub-rule (3) of R.105. 6. To understand the rival contentions, it is apposite to extract R. 22 and R. 105 of Order XXI. "22. Notice to show cause against execution in certain cases.--(1) Where an application for execution is made,-- (a) more than two years after the date of the decree, or (b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of Section 44A, or (c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him: Provided that no such notice shall be necessary in consequence of more than two years having elapsed between the date of the decree and the application for execution if the application is made within two years from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment - debtor if upon a previous application for execution against the same person the Court has ordered execution to issue against him. (2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. 105. Hearing of application.-- (1) The Court, before which an application under any of the foregoing rules of this Order is pending, may fix a day for the hearing of the application. (2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed. (2) Where on the day fixed or on any other day to which the hearing may be adjourned the applicant does not appear when the case is called on for hearing, the Court may make an order that the application be dismissed. (3) Where the applicant appears and the opposite party to whom the notice has been issued by the Court does not appear, the Court may hear the application ex parte and pass such order as it thinks fit." 7. Issue of notice to the person against whom execution is applied for is compulsory under sub-rule (1) of R.22 if any of the contingencies in clauses (a) to (c) therein arises. Since the order sought to be executed in the present case was passed within two years of the date of filing of the Execution Petitions, the executing court was not bound to issue/notice to the tenants (respondents in the Execution Petitions). The thrust of R. 105 of Order XXI is on the question as to what should be done by the executing court when the applicant or the opposite party does not appear before court on the day fixed for hearing of the application. Sub-rules (2) and (3) of R.105 deal with the same. Sub-rule (3) enables the court to hear the application ex-parte where the applicant appears and the opposite party to whom notice has been issued by the court does not appear. Therefore, sub-rule (3) would come into play only when notice is issued to the opposite party and when a day is fixed for hearing of the application. Here the question to be considered is whether notice is to be issued to the respondent compulsorily. That is covered by R. 22of Order XXI. R. 105 in no way overrides R.22. R.105 contemplates a situation where notice is issued to the respondent whereas R.22 contemplates a situation where the court has to consider whether notice is necessary at all to the respondent. Admittedly the arrears of rent was not paid. The tenants have not vacated the premises as well. The order was passed by the Rent Control Court on the basis of the compromise petition. Even if notice is issued to the tenants, it is not known what objections they could possibly raise. There is no agreement between the parties to extend the time for deposit of the arrears of rent. The order was passed by the Rent Control Court on the basis of the compromise petition. Even if notice is issued to the tenants, it is not known what objections they could possibly raise. There is no agreement between the parties to extend the time for deposit of the arrears of rent. No application was also filed by the tenants for extension of time, even assuming that such an application is maintainable. We do not find any error of jurisdiction or illegality in the proceedings of the execution court. The Original Petitions lack merit and they are accordingly dismissed.