Karnataka High Court
Hanummappa S.A. vs Neelamma on 9 July, 2014
Author: Dilip B.Bhosale
Bench: Dilip B Bhosale
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 09th DAY OF JULY 2014
BEFORE
THE HON'BLE MR. JUSTICE DILIP B BHOSALE
W.P.No.56571/2013 c/w W.P.No.56435/2013 &
W.P.No.10912/2014 (GM-CPC)
BETWEEN:
Hanumappa S.A.
S/o Annayappa
Aged about 62 years
No.15, 1st main road,
Suddagunte palya,
D.R.College post,
Bangalore-560 029. ... PETITIONER
(Common)
(By Sri.Ajith Anand Shetty, Adv.- Amicus curiae)
AND:
Neelamma w/o late Krishnappa K.M.
Aged about 60 years
Residing at No.32/35,
2nd main road, 1st East Block,
Byrasandra, Jayanagar,
Bangalore-560 011. ... RESPONDENT
(Common) (By Sri.Ramesh Ananthan, Adv.) 2 W.P.No.56571/2013 is filed under Articles 226 & 227 of the Constitution of India praying to quash/set aside the order dated passed at Annx-A dated 7.12.13, on the IA filed involving Section 47 of CPC dated 21.11.13 in Ex.P.No.1341/13 on the Court of Small Causes at Bangalore, vide Ann-B. W.P.No.56435/2013 is filed under Articles 226 & 227 of the Constitution of India praying to quash/set aside the order at Annx-A on I.A. filed invoking Rule 29 Order 21 of CPC dated 25.09.2013 in Ex.P.No.1341/13 on the Court of Small Causes at Bangalore, vide Ann-A. W.P.No.10912/2014 is filed under Articles 226 & 227 of the Constitution of India praying to quash/set aside the order dated passed on the I.A. filed involving Section 47 of CPC dated 5.10.13 in Ex.P.No.1341/13 on the Court of Small Causes at Bangalore, vide Ann-A. These W.Ps. coming on for preliminary hearing this day, the Court made the following:-
PC:
Heard learned counsel for the parties. On 30.06.2014, the following order was passed:- 3
"Mr.K.Suresh, holding for Smt.Gayathri, learned Advocate on record for the petitioner, seeks discharge on the ground that the petitioner desires to approach High Court Legal Services Authority for an appointment of Advocate to represent him in the Court.
Petitioner-in-person is present. In the presence of the petitioner, I requested Mr.Ajith Anand Shetty, learned Advocate, whether he can extend legal services to the petitioner and he instantly agreed for the same. The petitioner has also agreed for appointment of Mr.Ajith Anand Shetty, Advocate, to represent him in the present writ petitions. In the circumstances, Smt.Gayathri, learned Advocate is discharged and Mr.Ajith Anand Shetty, learned Advocate, is appointed as Amicus Curiae to represent the petitioner in these petitions.
Mr.K.Suresh, leaned Advocate, has agreed to hand over all papers/files to Mr.Ajith Anand Shetty.
Writ petitions to come up for admission on 07.07.2014".4
2. At the outset, I would like to place on record, a word of appreciation, even before I write the order, for the service rendered by Mr.Ajith Anand Shetty, learned advocate appointed as Amicus Curiae by this Court to represent the petitioner. In find that he has taken trouble in studying the case and placing it before the Court efficiently.
3. These writ petitions arises from the orders dated 07.12.2013, 25.09.2013 & 05.10.2013, whereby, three interim applications have been rejected. The 1st application was filed by the petitioner under Section 47 of CPC seeking enquiry as to identity of the property, which is a subject matter of the instant proceedings. Order passed on this application is under challenge in W.P.No.10912/2014. The 2nd application was filed by the petitioner under Order 21 Rule 29 of CPC, seeking stay of the execution proceedings (i.e., Execution Case 5 No.1341/2013) till disposal of O.S.No.1142/2002 filed by the petitioner for perpetual injunction. Order passed on this application, is a subject matter of W.P.No.56571/2013. The 3rd application filed by the petitioner was also under Section 47 of CPC questioning maintainability of the Execution case.
4. All the three applications were filed in Execution Case No.1341/2013, arising from the judgment and decree dated 20.06.2011 passed in House Rent Case No.10/2006 (for short 'HRC'). The HRC was filed by the respondent for ejectment of the petitioner from suit premises. The judgment and decree in HRC, admittedly, has attained finality. Thereafter, the respondent-decree holders initiated execution of the decree, in which, aforementioned, applications were filed by the petitioner.
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5. Insofar as identity of the property is concerned, I have perused the impugned order and I do not find any reason to interfere with the same, since identity of the suit property was never an issue in the suit, at any point of time. Mr.Shetty, could not and did not point out any apparent error in the impugned order warranting interference by this Court. Hence, the order on this I.A. is confirmed.
6. Petitioner has filed O.S.No.1142/2002 for perpetual injunction claiming to be the owner of suit property. The suit was filed before the judgment and decree dated 20.06.2011 sought to be executed in Ex.Case No.1341/2013. The petitioner in the second application sought stay of the execution proceedings, pending the hearing and disposal of O.S.No.1142/2002. Similar contention (i.e., claiming to be the owner of the suit property) was raised by the petitioner in HRC was 7 answered in the 'negative'. In view thereof, there is no question of granting stay to the Execution case, pending the said suit. As a matter of fact, in view of the judgment and decree dated 20.06.2011 in HRC, I have doubt, whether O.S.No.1142/2002 would survive for decision. I would, however, not like to express any firm opinion, in respect thereof and I leave to the Court, which is dealing with the said suit. I am satisfied that the execution, in any case, need not be and cannot be stayed during pendency of the said suit.
7. In the 3rd application, the petitioner contends that after the impugned decree, an agreement to sale of the very same property, which is a subject matter of the execution case, has been executed by the respondent- decree holders in favour of the petitioner and in view thereof, his status as tenant stood changed into a status as landlord and therefore, the execution case is 8 not maintainable. Learned Amicus curiae appearing for the petitioner, pressed into service the following judgments in support of this contention; Puran Chand Halwai v. Krishan Kumar and another in Civil Revision No.2683/1997 of Punjab and Haryana High Court, K.Mani v. M.D.Jayavel & others in S.A.Nos.1464 & 1465/2010 of Madras High Court and D.S.Parvathamma v. A.Srinivasan in Civil Appeal No.1527/2000 of Apex Court.
8. According to the petitioner, the respondent- decree holders after the decree attained finality, executed an agreement to sell in respect of the suit premises in favour of the petitioner for Rs.20 lakhs, and Rs.18 lakhs have already been paid in cash as earnest amount. Execution of the agreement and receipt of the amount as alleged have been stoutly denied by the respondent-decree holders. The petitioner has already 9 filed O.S.No.8050/2013 seeking specific performance of the said agreement. The suit is pending before the City Civil Court at Bangalore. This Court is informed that the petitioner had filed an application for interim relief in the said suit. The application was initially granted vide ex-parte order dated 05.11.2013. The order dated 05.11.2003, was, however, vacated vide order dated 16.1.2014 and the said application was ultimately rejected. In the said suit, the respondent-decree holders have already filed written statement, where they have denied their signature on the said agreement and receipt of the amount as mentioned therein. In other words, the respondent-decree holders have denied execution of the said agreement. In the backdrop of these facts, the judgments relied upon, in my opinion, are of no avail to the petitioner.
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10. According to the respondent-decree holders, there was no reason for the respondent to execute such agreement when even a guideline value of the property, at the relevant time was about Rs.One crore. I would not like to express any opinion on merits of the said suit. But having regard to the facts and circumstances of the case, I do not find any reason to interfere with the order impugned in the present writ petitions.
11. Learned Amicus curiae, submitted that some breathing time may be given to the petitioner to vacate the premises, instead of forcefully throwing them out of the suit premises.
12. Learned counsel for the respondent, fairly submits that the respondent-decree holders do not have any objection for granting time till 31.12.2014 to vacate the premises.
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13. In the circumstances, I am satisfied that the following order shall meet the ends of justice:-
(i) The respondent shall not execute the decree before 31.12.2014. Till then, they may comply all other formalities for its execution. This shall not preclude the petitioner from carrying the matter to the Supreme Court, if they so desire.
(ii) If the premises is not vacated and handed over to the respondent-decree holders on or before 31.12.2014, it would be open to the respondent-decree holders to execute the decree and take possession, if necessary with the police aid within a period of 15 days therefrom, subject to an order, if any, passed either in O.S.No.8050/2013 or by the Supreme Court.
(iii) The City Civil Court, Bangalore, where O.S.No.8050/2013 is pending, shall endeavour to dispose of the said suit as 12 expeditiously as possible and preferably before 30.04.2015.
(iv) It is made clear that the respondent-decree holders, after getting possession of the suit premises, shall not create any third party rights therein or part with possession thereof till the disposal of O.S.No.8050/2013.
(v) It is needless to mention that execution of the decree, would be subject to outcome of O.S.No.8050/2013.
14. With these observations, the writ petitions are disposed of.
Mr.Shetty, at this stage, submits that he would not like to claim any fees in this petition even from the Legal Services Authority. His request is recorded.
Sd/-
JUDGE Srl.