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2018 DIGILAW 103 (KER)

M. Syed Mohamed v. P. T. Koyatti

2018-01-30

ALEXANDER THOMAS

body2018
JUDGMENT : 1. The main prayer in this Civil Revision Petition filed under Section 115 of the Code of Civil Procedure is as follows : “To call for the records leading to order in E.A. No.202 of 2016 in E.P. No. 194 of 2015 in R.C.P No.155 of 2013 passed by the Principal Munsiff's Court-I, Kozhikode and set aside the same and allow the said application with cost throughout.” 2. Heard Smt.M.Shajna, learned counsel appearing for the petitioners and Sri.V.T.Madhavanunni, learned counsel appearing for the respondents. 3. The petitioner is not a party in EP No.194/15 arising out of RCP No.155/2005 pending on the file of Rent Control Court/ Principal Munsiff's Court, Kozhikode. The respondents herein are the decree holders. The wife of the petitioner herein is the defendant/judgment debtor in the above proceedings. The Execution Petition was filed by the respondents herein/plaintiffs/decree holders praying for execution directing the Judgment Debtor to put the respondents in possession of the property which is the subject matter of the EP. The petitioner has filed the present EA No. 202/2016 in the above EP which has led to the impugned order dated 19.06.2017. It is the case of the petitioner the said Execution Application, EA No.202/2016 has been filed by him as obstruction petition as conceived from Order XXI Rule 97 of the Code of Civil Procedure on the premise that the property sought to be delivered is not liable to be delivered to the respondent since the petitioner herein is in possession of the same as per the sale agreement dated 02.05.1990 executed by the respondents herein/decree holders and that he is entitled to possess the same. 4. It is the case of the petitioner that the trial court is bound to consider and adjudicate upon the said obstruction application as contemplated under Order XXI Rule 97 of the Code of Civil Procedure. It is further stated that before the trial and evidence, on 09.06.2017 the Execution Court has dismissed the above EA No.202/2016 as per the impugned order dated 19.06.2017 without following the procedure established by law and without granting an opportunity to the petitioner to adduce evidence. The petitioner would contend that the Execution Court has not considered the nature and scope of the petition and wrongly concluded that it appears that the EA is actually filed under Section 47 of the CPC. The petitioner would contend that the Execution Court has not considered the nature and scope of the petition and wrongly concluded that it appears that the EA is actually filed under Section 47 of the CPC. The Execution Court has further held that in order to maintain the petition, the petitioner must be a party or representative of the party to the proceedings and on that premise the EA has been dismissed as per the impugned order. It is this order that is under challenge in this Civil Revision Petition. 5. The impugned order dated 19.06.2017 rendered by the execution court on EA No.202/2016 in EP No.194/2015 in RCP No.155/2013 reads as follows : “This is an application filed by a third party seeking a relief to declare that decree is unexecutable. 2. The gist of the case of petitioner is that the decree schedule property and other properties were agreed to sold to him as per an agreement dated: 02.05.1990 and possession was given by the owner of the property. His wife was a tenant in the decree schedule room. Now the decree holder attempted to evict him in the guise of evicting the tenant. 3. The decree holder filed counter and strongly objected the matter. It is contended that the petitioner is not a party to the proceedings hence the petition is not maintainable. It is further contended that petitioner was examined as RW1 and on behalf of the respondent in the RCP. It is further contended that there is no bonafide in the petition. 4. I have gone through the records. It is seen that the petitioner is not a party in the proceedings. It appears from the petition that the same is filed under Section 47 of CPC. To maintain an application under Section 47 of CPC the petitioner must be the party or representative of them to the proceedings. In the present petition, the petitioner is neither a party nor is a representative of the party. Therefore, only on that score, the petition is liable to be dismissed. In the result, petition is dismissed.” 6. To maintain an application under Section 47 of CPC the petitioner must be the party or representative of them to the proceedings. In the present petition, the petitioner is neither a party nor is a representative of the party. Therefore, only on that score, the petition is liable to be dismissed. In the result, petition is dismissed.” 6. A reading of the said order would disclose that the specific contention of the petitioner in the obstruction petition, EA No.202/2016 is filed under Order XXI Rule 97 of the Code of Civil Procedure and that therefore that procedure contemplated for that provision should be followed has not been duly adverted to and considered. On the other hand, the court below has straight-away come to the conclusion that EA filed by the petitioner is under Section 47 of the CPC. Therefore, the impugned order is seen vitiated by non consideration of the specific contention of the petitioner and for not giving proper and cogent reasonings for arriving at the conclusion therein. 7. In this context, it is also relevant to note the provisions contained in Sec.14 of the Kerala Buildings (Lease & Rent Control) Act, 1965, which provides as follows: "Sec. 14: Execution of Orders. Every order made under section 11 or section 12 or section 13 or section 19 or section 33 and every order passed on appeal under section 18 or on revision under section 20 shall, after the expiry of the time allowed therein be executed by the Munsiff or if there are more than one Munsiff, by the Principal Munsiff having original jurisdiction over the area in which the building is situated as if it were a decree passed by him: Provided that an order passed in execution under this section shall not be subject to an appeal but shall be subject to revision by the Court to which appeals ordinarily lie against the decisions of the said Munsiff.” 8. A learned Single Judge of this Court in the decision in Kuruvilla v. Kesavan, reported in 1980 KLT 364 , has held that under Sec.14 of the abovesaid Act, orders under the Sections specified therein including an order under Sec.11 are to be executed by the Munsiff as if they are decrees passed by him. A learned Single Judge of this Court in the decision in Kuruvilla v. Kesavan, reported in 1980 KLT 364 , has held that under Sec.14 of the abovesaid Act, orders under the Sections specified therein including an order under Sec.11 are to be executed by the Munsiff as if they are decrees passed by him. The proviso to Sec.14 enacts “that an order passed in execution under this section shall not be subject to an appeal, but shall be subject to revision by the Court to which appeals ordinarily lie against the decisions of the said Munsiff”. This Court has held in Kuruvilla's case supra that the execution contemplated by Sec.14 of the above said Act is the execution of the orders against the parties thereto and it does contemplate investigation of obstructions offered by the third parties or the orders in such proceedings and that therefore such orders are not order “passed in execution under this Section” as contemplated in the proviso to Sec.14, although they would be orders in the course of the execution proceedings and that such orders are passed under the provisions of the C.P.C. That the Rent Control Act contains no provisions governing the obstructions to delivery of possession by third parties, applications for their removal, investigations of such applications, orders on such applications or their effect; and that they are contained only in the C.P.C. In that view of the matter, this Court held in Kuruvilla's case supra that the remedy of such a party, who is aggrieved by an order passed on the adjudication of the obstruction petition, is not to prefer a revision as envisaged in the proviso to Sec.14 of the Rent Control Act, but that such an order is appeable in terms of Rule 103 of Order XXI of the C.P.C. Similar view was reiterated by a learned Single Judge of this Court in the judgment in Dr.Yogiraj v. Ravindranath, reported in 1983 KLT 499 . A Division Bench of this Court in the judgment in Ravi Varma Raja v. Munsiff's Court, reported in 2009 (4) KLT 870 , has dealt with a case, where the petitioner therein was not a party to the order of eviction, which was sought to be executed and he was a third party claimant and his claim petition/obstruction petition was dismissed by the Munsiff's Court concerned. The Division Bench had approved the correctness of the view taken by the Single Judge rulings in Kuruvilla's case reported in 1980 KLT 364 and Dr.Yogiraj's case reported in 1983 KLT 499 and held that the remedy of such a third party, who is aggrieved by an order adjudicating his claims in the obstruction petition is to file an appeal as conceived in Order XXI Rule 103 C.P.C. It was reiterated by the Division Bench in Ravi Varma Raja's case supra that execution contemplated by Sec.14 of the Rent Control Act, is the execution of the orders against the parties thereto and it does not contemplate investigation of obstructions offered by third parties or the orders in such proceedings and that orders passed on obstructions and claims do not fall within the ambit of orders, “passed in execution under this section” as conceived in the proviso to Sec.14 of the Rent Control Act, but that they would be orders in the course of the execution proceedings as regulated by the provisions of the C.P.C. A Division Bench of this Court in Ayyappan Pillai v. Mohana Chandran, reported in 2005 (3) KLT 492, has held that it is by now well settled by a catena of decisions that an existence of an alternative remedy cannot be a legal bar for execution of the Constitutional remedies under Articles 226 and 227 of the Constitution of India and that at the same time, by way of self imposed restriction if there is an effective alternative remedy, this Court will not be inclined to exercise such extra ordinary jurisdiction and would rather relegate the parties to alternative remedies provided under the Statute, etc. In the judgment in Sameer Singh & Anr. v. Abdul Rab & Ors. reported in 2015 (1) SCC 379 = AIR 2015 SC 591 = 2014 KHC 4666 the Apex Court dealt with a case regarding the applicability of Order XXI Rules 97, 99, 100, 101, 102, 103 etc. as well as the provisions contained in Sec.115 of the C.P.C. and held that if the execution court declines to adjudicate on the ground that it does not have jurisdiction, the said order cannot earn the status of a decree and if an executing court only expresses its inability to adjudicate by stating that it lacks jurisdiction, then the status of the order has to be different. Where the execution court does not adjudicate upon the lis between the parties under Order XXI Rule 101 C.P.C. on the ground that it has become functus officio, etc. and thus thereby, lost jurisdiction, the order passed by it cannot be deemed to be a decree as contemplated in Order XXI Rule 103 C.P.C. and that a petition filed under Sec.115 of the C.P.C. against such an order of the executing court for failure to exercise its jurisdiction under Order XXI Rule 103 C.P.C., etc. was held to be maintainable. It was further held by the Apex Court in para 23 of that judgment that where execution court, without going into the merits, declines to adjudicate upon lis, between parties under Order XXI Rule 101 C.P.C. on the ground that it has become functus officio, etc., then the order passed by the executing court cannot be deemed to be a decree and that it pertains to jurisdictional error, which is revisable by the High Court under the provisions contained in Sec. 115 of the C.P.C. In the instant case, a reading of the afore quoted impugned order would make it clear that the execution court has not even considered whether the specific contentions urged by the petitioner are tenable and sustainable, etc. and has straightaway held that the application, which was filed by the petitioner under Order XXI Rule 97 C.P.C. could be treated to be only as one under Sec. 47 of the C.P.C. and that, to maintain an application under Sec.47 of the C.P.C., the petitioner must be party or representative to the proceedings, etc. Since the court below has not met with the specific contentions urged by the petitioner that his application is maintainable under Order XXI Rule 97 C.P.C. and as the court below has not given proper and cogent reasonings for arriving at the conclusions in the impugned order, this Court is of the opinion that the said impugned order is tainted by jurisdictional error, etc. and that therefore it is revisable under Sec. 115 of the C.P.C. If the execution court had not given proper and cogent reasonings, as to why the contentions of the petitioner raised are not tenable and sustainable, then certainly the situation would have been different. 9. Sri. and that therefore it is revisable under Sec. 115 of the C.P.C. If the execution court had not given proper and cogent reasonings, as to why the contentions of the petitioner raised are not tenable and sustainable, then certainly the situation would have been different. 9. Sri. V.T. Madhavanunni, learned counsel appearing for the respondents would urge that even now that the plea of the petitioner is that he has not claimed any title or possession and that his only case is that his wife is having possession as a tenant and that he claims right over the property by virtue of the agreement for sale entered into between him and 5th respondent herein/5th plaintiff, etc. and that such contention raised by the petitioner is bereft of any merit whatsoever. In this regard Sri.V.T.Madhavanunni, learned counsel appearing for the respondents would place reliance on a 3-Judge Bench decision of the Apex Court in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & Anr. reported in (2012) 1 SCC 656 , that that any contract or sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Secs.54 and 55 of the Transfer of Property Act, and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Sec.53-A of the Transfer of Property Act) and that according to the T.P. Act, an agreement for sale, whether with possession or without possession, is not a conveyance. The learned counsel for the respondents has also placed reliance on the 3-Judge Bench decision of the Apex Court as in Ram Baran Prasad v. Ram Mohit Hazzra reported in AIR 1967 SC 744 , wherein it has been held by the Apex Court that a reading of Sec.14 along with Sec.54 of the Transfer of Property Act, 1882, would make it manifest that a mere contract for sale of immovable property does not create any interest in the immovable property, etc. On this basis, Sri.V.T.Madhavanunni, learned counsel appearing for the respondents would submit that the so-called obstruction petition filed by the petitioner is in essence and substance is not one which is conceived under Order XXI Rule 97 of the C.P.C. and that the said application said to have been filed under that provision is only a facade and ruse to delay execution proceedings. 10. Per contra, Smt.M.Shajna, learned counsel appearing for the petitioner would contend the petitioner had specifically pleaded that based on the sale agreement dated 2.5.1990 entered into between the respondents and the petitioner, the petitioner has been given possession of the building in question and that these aspects have been reiterated in the application filed as E.A.No.202/2016. This Court is not inclined to consider these rival contentions posed by the parties and all those issues are fully left to be determined by the execution court consequent on the remit proposed to be made herein after. 11. In the light of these aspects, it is ordered that the impugned order dated 19.6.2017 passed by the execution court concerned (Munsiff's Court, Kozhikode) on E.A.No.202/2016 in E.P.No.194/2015 in RCP No.155/2013, will stand set aside solely in view of the aspects stated herein above. Consequently, it is ordered that E.A.No. 202/2016 will stand remitted to the execution court for consideration of that application afresh and the execution court will have to consider all the contentions afresh and independently and untrammelled by the observations and findings in the impugned order, as the same has now been set aside. The execution court will pass orders on the E.A. without much delay, preferably within a period of six weeks from the date of production of a certified copy of this judgment. The parties will produce certified copies of this judgment before the execution court concerned for necessary information. With these observations and directions, the afore captioned Civil Revision Petition stands finally disposed of.