Karnataka High Court
Mary Lazar (Deceased) By L.Rs vs Krishna Gopal on 23 September, 2002
Equivalent citations: ILR2002KAR4786, 2002(6)KARLJ320
Author: A.M. Farooq
Bench: A.M. Farooq
ORDER A.M. Farooq, J.
1. This revision petition is filed by the legal representatives of the decree-holder in H.R.C. No. 2022 of 1994 on the file of the learned Small Causes Judge, Bangalore. This revision petition is filed under Section 115 of the CPC assailing the order dated 18-3-2002 in Execution Case No. 273 of 1999 on the file of the learned Additional Small Causes Judge, Bangalore dismissing the execution petition filed by the petitioners.
2. I have heard the learned Counsel appearing for the petitioners and the learned Counsel appearing for the respondent.
3. When this revision petition had come up for admission on 1-7-2002, on finding prima facie, that the impugned order cannot be sustained, I directed issue of emergent notice to the respondent so as to give an opportunity to the respondent and to dispose off the matter. Thereafter, the respondent has been served and the respondent is represented by Sri Sangvi, the learned Counsel who fully supported the impugned order and contended that even though the original landlady had secured an order of eviction in the H.R.C. case, that order was granted to her on a compromise between her and the respondent, and that too, in view of her requiring the petition schedule premises for her personal occupation. It is contended that since the decree was granted personally to the original landlady, the L.Rs cannot execute the said order, which is personal to her. The learned Counsel also contended that subsequently the respondent had received notice from a third party to the effect that the original landlady has willed away the suit property to that person and claiming rents from the respondent and the respondent has allegedly paid the rents to that person who issued her the notice. On all these grounds, the learned Counsel appearing for the respondent submitted that the Trial Court was justified in dismissing the execution petition.
4. It is an admitted fact that the mother of the petitioners was owner of the petition schedule premises which is in possession of the respondent as a tenant. It is also admitted that the said landlady had filed an eviction case under the Karnataka Rent Control Act, 1961 and there was an order in the said H.R.C. case on 29-9-1995. During the pendency of the said H.R.C. case the respondent withdrew his objection and agreed to vacate the schedule premises, if time is granted to him to vacate till 31-12-1998. The Court below on considering the materials on record and evidence adduced by the landlady, held that the landlady has proved that she requires the petition schedule premises for her own use and occupation and allowed the main petition. The following is the order passed in the H.R.C. case:
"In the result, main petition filed under Section 21(1)(h) of the Karnataka Rent Control Act and I.A. No. I filed under Order 23, Rule 3 of the CPC is allowed. The respondent is granted time till 31-12-1998 to vacate and handover the schedule property to the petitioner. The respondent is directed to pay monthly rent at the rate of Rs. 4,250/- to the petitioner regularly. If the respondent fails to pay monthly rent regularly as agreed in I.A. No. I the petitioner is entitled to execute the eviction decree to evict the respondent from the premises".
The order was passed in the H.R.C. case on 29-11-1995 and time was granted to the respondent to vacate upto 31-12-1998.
5. Unfortunately, the landlady died and the execution petition was filed by her sons. In the said execution proceeding, the respondent/judgment-debtor appeared and contended that the execution petitioners are not entitled for delivery of possession since they are not the decree-holders. The decree obtained by their mother was not executable because since that decree was granted personally to her. It was further contended that the late landlady had contended in the eviction case that she was staying with the family of her eldest son as a foreigner and that she intended to stay separately from her son and therefore it was contended that the Executing Court should dismiss the execution petition.
6. Surprisingly, the Executing Court without applying its mind, has dismissed the execution petition without even considering the several citations made before it, on the ground that the eviction order was granted only for the requirement of late landlady and therefore the legal representatives of the landlady cannot seek possession of the premises by executing the eviction order.
7. The above order appears to be a perverse order which cannot be sustained. Even though the learned Counsel appearing for the respondent cited before me a judgment of the Hon'ble Supreme Court in Shantilal Thakordas and Ors. v. Chimanlal Maganlal Telwala, I am of the view that the principles laid down in the said case is not at all applicable to the admitted facts of this case. Here is a case where an eviction decree has been obtained legally by the deceased landlady. More than sufficient time was granted to the respondent-tenant to vacate the tenanted premises by the Court which passed the eviction order. It is thereafter the eviction decree was being executed. As rightly contended by the learned Counsel appearing for the petitioners, the judgment-debtor cannot at all object for the execution of the decree legally obtained by their mother. He has relied upon a judgment of this Court in Shankarappa v. Puttamma, .
8. In the above cited judgment this Court has laid down that the crucial test to find out whether the right of action survives or not is to examine whether the reliefs sought could be enjoyed by the survivors or would it be nugatory. This Court held that it is in that context a distinction is drawn between cases where the death occurs before the decree and cases where the death occurs after the decree.
9. This Court in the above judgment has further held that while drawing the above distinction, in cases where the death occurs before the decree, the cause pleaded is in a fluid stage and has not crystallised, while in the latter case the cause has crystallised and it is crystallised form or substance, which is in the hands of the legal representatives. This Court relying upon a judgment of the Hon'ble Supreme Court (Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, ) held that the decree obtained by the deceased is a benefit to the estate of the deceased and the legal representatives are entitled to that benefit and could execute the order of eviction obtained by the deceased. I am in full agreement with the view expressed by this Court in the above cited judgment.
10. There cannot be any doubt from the facts of this case that the Trial Court has acted with material irregularity and also failed to exercise the jurisdiction vested in it in passing the impugned order. The impugned order, therefore, cannot be sustained. It is accordingly set aside. The revision petition is accordingly allowed. The execution case is restored to the file and the Trial Court is directed to proceed with the execution in accordance with law.
11. At this stage, the learned Counsel for the respondent submitted that he wants to take up the matter before the Hon'ble Supreme Court and some breathing time to vacate the premises may be granted. The learned Counsel for the petitioners submitted that in such an event, the respondent shall be made to file an affidavit giving an undertaking to this Court to vacate the premises voluntarily if he is not able to get an interim order from the Hon'ble Supreme Court. In view of the said submissions, the respondent is granted 8 weeks time to voluntarily vacate and deliver vacant possession of the petition schedule premises to the petitioners or any one of the petitioners and subject to the condition that the respondent files an affidavit of undertaking within two weeks from today giving an undertaking to this Court that he shall voluntarily quit, vacate and deliver vacant possession of the petition schedule premises to the petitioners or any one of them on or before 20th November, 2002.