Karnataka High Court
K Dinesh Babu vs Smt P Veena Ashok on 19 January, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2018
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION Nos.58166-58169/2017(GM-CPC)
BETWEEN:
K. DINESH BABU,
AGED ABOUT 57 YEARS,
S/O LATE A. N. KRISHNA SHETTY,
R/AT DOOR NO.415, "ASHIRWAD"
DAYA MARG, 1ST STAGE, SIDDARTHA NAGAR,
MYSORE-570011.
... PETITIONER
(BY SRI KRISHNAMURTHY G. HASYAGAR, ADVOCATE)
AND:
SMT. P. VEENA ASHOK,
AGED ABOUT 54 YEARS,
D/O P.R. ASHOK KUMAR,
R/AT D. N.5916,
3RD CROSS, OPPOSITE SADVIDYA,
SEMI-RESIDENTIAL COLLEGE,
2ND STAGE, VIJAYANAGAR,
MYSORE-570005.
... RESPONDENT
(BY SRI Y. K. NARAYANA SHARMA, ADVOCATE)
...
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH ANNX-J THE IMPUGNED ORDER DTD 13.12.2017
PASSED BY THE I ADDL. I CIVIL JUDGE AND J.M.F.C. MYSURU,
IN EX.NO.327/2015 ON I.A.NOS.3, 4 AND 6 FILED BY THE
PETITIOENR AND I.A.NO.5 FILED BY THE RESPONDENT HEREIN
AND CONSEQUENTLY ALLOW I.A.NOS.3, 4 AND I.A.NO.6 FILED
2
BY THE PETITIONER AND DISMISS I.A.NO.5 FILED BY THE
RESPONDENT HEREIN.
THESE WRIT PETITIONS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present petitioner, who is judgment debtor has filed these writ petitions against the order dated 13.12.2017 rejecting I.As.3, 4 and 6 filed by him and allowing I.A.5 filed by the respondent-decree holder made in Ex.No.327/2015 by the Executing Court issuing delivery warrant and permitting the Court Ameen to break open the lock as well as directing the Station House Officer of the jurisdictional police to provide assistance to execute the delivery warrant.
2. The brief facts of the case according to the petitioner are that:-
Defendant Nos. 1 to 4 in O.S.No.813/2008 executed a registered agreement of Sale dated 25.9.2007 agreeing to sell the suit schedule property measuring 3 320 sq. ft. for a total Sale consideration of Rs.5,50,000/- and received an advance amount of Rs.1,50,000/-. Thereafter, defendant Nos. 1 to 4 received another sum of Rs.50,000/- through a cheque as an additional advance amount. Subsequently defendant Nos. 1 to 4 executed a Sale Deed in favour of the present respondent-5th defendant in O.S.No. 813/2008 - a portion of the property measuring 29 x 16 ft. out of the entire property-shop bearing No. 3 measuring 8 x 10 ft. being part and parcel of the building bearing Door No.8 (Nos. 588, 589, 589A, New No.L.31/2, L31/A situated at Ashoka Road, Lakshkar Mohalla, Mysore City with boundaries morefully described in the plaint.
3. On the basis of the Sale Deed executed by the defendant Nos. 1 to 4 in favour of the 5th defendant, notice of attornment of tenancy was issued by defendant Nos. 1 to 4 to the present petitioner on 4 17.1.2008. On 19.3.2008 a legal notice was issued by the petitioner to defendant Nos. 1 to 4 and the said defendants replied to the said notice on 29.3.2008. Thereafter, the present petitioner, who is plaintiff in O.S.No.813/2008 filed the said suit for specific performance for enforcement of agreement dated 25.9.2007 and to declare that the Sale Deed dated 1.1.2008 said to have been executed by defendant Nos. 1 to 4 in favour of the 5th defendant-respondent herein is null and void and not binding on him.
4. In the meanwhile, the present respondent-5th defendant in O.S.No.813/2008 filed HRC No.42/2009 under Section 27(2)(a) and (r) of the Karnataka Rent Act, 1999 to evict the petitioner herein from the suit schedule premises on the ground that the same is required for her bonafide use and also on the ground that he has not paid the rents. After hearing both the parties by the order dated 12.9.2012, the HRC petition 5 was allowed and the present petitioner was directed to hand over the vacant possession of the schedule premises to the respondent within one month from the date of that order and also to pay or deposit Rs.12,760/- with interest at the rate of 750/- per month and rents due subsequent to 1.6.2009 at the rate of Rs.750/- per month within one month from that order with an observation that failing to deposit the rent by him, he shall hand over the vacant possession of the schedule premises as provided under Section 27(2)(a) of the Karnataka Rent Act, 1999 to the respondent herein.
5. Against the said order passed in the HRC proceedings, the present petitioner filed House Rent Revision Petition No.121/2013 before this Court. This Court after hearing both the parties by the order dated 25th September, 2013 disposed of the revision petition granting two years time to the present petitioner to vacate and hand over vacant possession of the premises 6 subject to filing an affidavit/undertaking within six weeks to the effect that he would vacate and hand over vacant possession of the premises to the respondent immediately on or before completion of two years and also paying of rent of Rs.2,000/- per month as and when it falls due failing which the landlord was at liberty to file execution petition. Accordingly, the present petitioner filed an affidavit of undertaking on 8.11.2013.
6. In the meanwhile, the suit filed by the present petitioner in O.S.No.813/2008 for specific performance and for declaration of Sale Deed dated 1.1.2009 as null and void came to be decreed on 27.11.2014 declaring that the said Sale Deed executed by the present respondent is null and void and is not binding on him.
7. Aggrieved by the said judgment and decree, the present respondent filed RA 15/15 before the IV Additional District Judge, Mysuru, who after hearing 7 both parties by the judgment and decree dated 11.10.2017 allowed the same and set aside the judgment and decree dated 27.11.2014 made in O.S.No.813/2008 by the III Additional Senior Civil Judge, Mysuru, consequence of which, the suit of the present respondent for specific performance of contract, declaration and also for the relief of permanent injunction was dismissed. However an observation was made that the respondent was entitled for recovery of earnest money of Rs.2,00,000/- from defendant Nos. 1 to 4 with interest at 12% per annum from the date of the suit till realistation. Against the judgment and decree passed by the Lower Appellate Court, the present petitioner filed RSA No.2170/2017 on 26.10.2017 before this Court which is pending adjudication.
8. In the meanwhile, the landlord/decree holder in HRRP No.121/2013 filed Execution Petition 327/2015 before the I Additional I Civil Judge and 8 JMFC., Mysuru to implement the order dated 12th September, 2012 made in HRC No.42/2009 by the I Additional First Civil Judge and JMFC., Mysuru and the order dated 25th September made in HRRP No.121/2013. During the pendency of the execution poceedings, the judgment debtor filed three application
- I.A.3 under Section 151 of the Code of Civil Procedure to dismiss the execution petition in view of subsequent developments; I.A.IV under Order XXI Rule 29 of the Code of Civil Procedure to stay the operation of the Judgement and decree till the fate of execution petition is decided; and I.A.V under Section 151 of the Code of Civil Procedure praying to permit the Court Ameen to break open the lock of the premises and the Station House Officer of the jurisdictional police to provide assistance in execution of delivery warrant. The said applications were supported by the affidavits contending that the suit filed by the judgment debtor came to be decreed wherein defendant Nos. 1 to 4 were directed to 9 executed the Sale Deed in her favour pertaining to suit schedule property and the Sale Deed executed by defendant Nos. 1 to 4 in favour of the respondent herein is null and void and is not binding on the respondent. Therefore the decree holder had no locus standi to file execution petition -HRRP 121/2013 and the same is confirmed by the High Court granting two years' time to vacate and hand over the possession and to dismiss the execution petition as judgment debtor cannot be evicted without stay of judgment and decree passed in O.S.No.813/2008. He also has stated that he cannot be evicted because his ownership is confirmed. Hence by concealing the above facts, petition was filed, etc.
9. The decree holder filed an affidavit in support of his application contending that the judgment debtor is obstructing for execution of delivery warrant by locking the premises whenever it is tried for. The first Additional Civil Judge and JMFC., Mysuru considering 10 the applications and objections, by the impugned order dated 13.12.2017 dismissed all the applications filed by the judgment debtor, but allowed the application filed by the decree holder. Hence the present writ petitions are filed by the judgment debtor.
10. I have heard the learned Counsel for the parties to the lis.
11. Sri Krishnamurthy G. Hasyagar, learned Counsel for the petitioner vehemently contended that the suit filed by the plaintiff-petitioner for specific performance and to declare that registered Sale Deed dated 1.1.2008 is null and void as has been decreed by the trial Court on 27.11.2014; that as on the date when the execution petition was filed, the Sale Deed was declared as null and void and therefore, the execution petition was maintainable. He would further contend that though the Lower Appellate Court set aside the judgment and decree of the trial Court, it has recorded a 11 specific finding at para-29 in its judgment that the plaintiff has succeeded in proving the due execution of the said agreement of Sale and also payment receipts at Exs.P.1 and P.2. In view of such findings recorded by the Lower Appellate Court the agreement executed by defendant Nos. 1 to 4 in favour of the plaintiff has been proved, the Executing Court cannot proceed further till the proceedings in O.S.No.813/2008 culminating RA 15/15 has reached finality. He would further contend that against the judgment and decree dated 11.10.2017 made in RA 15/15, the petitioner has preferred RSA 2170/17 on 26.10.2017 and in case he succeeds in the second appeal, he has to get back possession from the respondent. Therefore, in view of subsequent events, the Executing Court cannot proceed and it ought to have stopped the proceedings by allowing the applications filed by him under Order XXI Rule 29 of the Code of Civil Procedure. He would further contend that though this Court in HRRP No. 121/2013 confirmed the 12 order passed in HRC No.42/2009 granting two years' time and inspite of petitioner filing an affidavit before this Court in view of subsequent developments, the decree holder cannot execute the decree since the proceedings in HRC side has attained finality and in view of the pendency of the civil proceedings, the Executing Court cannot enforce the eviction proceedings and if enforced, it would invite civil consequences thereby the petitioner would be put in great hardship which cannot be compensated. Therefore, he sought to quash the impugned order passed by the trial Court.
12. In support of his contentions and in view of the subsequent developments/events that the Executing Court cannot proceed, he relied upon the following judgements:
a) Sheshambal -vs- Chelur Corporation Chelur Building reported in (2010)3 SCC 470 -para 16;13
b) Smt. Radhi Dei and Others -vs- Lalit Bihari Mohanty reported in AIR 1991 Orissa 36 - end of paras 3 and 4 and para-7 onwards and end of para-7;
c) R. Kanthimathi -vs- Beatrice Xavier reported in (2000)9 SCC 339 para-6 Therefore, the learned Counsel sought to allow the writ petitions.
13. Per contra, Sri Y.K. Narayana Sharma, learned Counsel for the respondent sought to justify the impugned order passed by the Executing Court allowing the application filed by the respondent-decree holder and rejecting the applications filed by the petitioner- judgment debtor and contended that the eviction proceedings filed by the respondent came to be decreed on 12.9.2012 in HRC No.42/2009 and the same was affirmed in R.R.48/2012 on 17.6.2013 and re-affirmed by this Court in HRRP 121/2013 on 25.9.2013. The 14 said order passed by this Court concurring with the order passed in HRC proceedings has reached finality.
14. The learned Counsel further contended that in pursuance of the orders passed by this Court, the petitioner also has filed an affidavit of undertaking before this Court on 8.11.2013 stating that he would vacate and hand over vacant possession of the premises immediately on or before completion of two years from the date of the order which has attained finality. In the HRC proceedings initiated on the basis of the registered Sale Deed dated 1.1.2008 though the trial Court declared the Sale Deed dated 1.1.2008 as null and void, the Lower Appellate Court reversed the judgment of the trial Court and dismissed the suit filed by the plaintiff by the judgment and decree dated 11.10.2017. Of course the same was the subject matter in RSA No. 2170/2017, but the fact remains that the proceedings initiated under the provisions of Section 27(2)(a) and (r) 15 of the Karnataka Rent Act, 1999 has reached finality. Therefore, the decree holder filed execution petition and the same is in accordance with law.
15. The learned Counsel for the respondent further contended that the Executing Court cannot go beyond the decree. The subsequent developments will in no way affect the proceedings passed in HRC proceedings which has reached finality. Hence, the Executing Court was justified in rejecting the applications filed by the judgment debtor and allowing the application filed by the decree holder. Hence, he sought for dismissal of the writ petitions.
16. Having heard the learned Counsel for the parties, the facts are not in dispute. The proceedings in HRC 42/2009 has reached upto this Court by filing HRRP 121/2013 and this Court confirmed the eviction order passed in HRC on 25.9.2013 which has attained finality. It is also not in dispute that the suit filed by 16 the present petitioner in O.S.No. 813/2008 to enforce the specific performance and to declare that the Sale Deed dated 1.1.2008 in respect to certain portion by defendant Nos. 1 to 4 in favour of present respondent- 5th defendant as null and void. It is also not in dispute that the trial Court by the judgment and decree dated 27.11.2014 decreed the suit for specific performance and declared that the Sale Deed dated 1.1.2008 obtained by the present respondent has null and void and is not binding on the plaintiff.
17. It is an undisputed fact that the present respondent aggrieved by the said judgment and decree dated 27.11.2014 made in O.S.No.813/2008 filed R.A.No.15/2015 before the IV Additional District Judge, Mysuru, who after hearing both the parties by the judgment and decree dated 11th October, 2017 allowed the appeal and set aside the judgment and decree of the trial Court and dismissed the suit for specific 17 performance filed by the plaintiff holding that the plaintiff is entitled for recovery of earnest money of Rs.2,00,000/- from defendant Nos.1 to 4 with interest at 12% per annum. It is also not in dispute that against the said judgment and decree, RSA 2170/2017 was filed by the present petitioner on 26.7.2017 which is still pending adjudication, but the fact remains that in the HRC proceedings initiated by the respondent on the basis of the registered Sale Deed dated 1.1.2008, he has obtained an order of eviction on 12.9.2012 under the provisions of Section 27(2)(a) and (r) of the Karnataka Rent Act which is confirmed by the Revision Court in R.R.48/2012 on 17.6.2013 which was re-affirmed by this Court in HRRP 121/2013 on 25th September, 2013 specifically holding as under:
"However, to enable the petitioner to find out alternate accommodation, another two years time is granted to vacate and handover vacant possession 18 of the premises subject to filing an affidavit/undertaking to this effect within six weeks that he will vacate and hand over vacant possession of the premises immediately on or before completion of two years and also subject to payment of rental of Rs.2,000/- per month as and when it falls due. On failure to vacate the premises as per the undertaking, the landlord is at liberty to file execution petition and take possession. With the above observation, petition is disposed of."
18. In pursuance of the said order passed by this Court, the petitioner also filed an affidavit of undertaking before this Court which reads as under:
"Affidavit I, Sri. K. Dinesh Babu, aged about 53 years, Son of Late Sri A.N. Krishna Setty, shop No.3, D.No.8, (New No:589/A1, New No.L31/A, Ashoka 19 Road, Laskar Mohalla, Mysore-570001, the petitioner, to-day at Bangalore, do hereby solemnly affirm and state on oath as follows:-
1. I state that this Hon'ble Court, by its order dated 25-09-2013, was pleased to dispose of the above petition, granting time to me for vacating and handing over the possession of the petition schedule property to the respondent, subject to filing an affidavit/undertaking to the effect that I shall vacate and hand over vacant possession of the premises immediately on or before completion of two years and also subject to payment of rent at Rs.2,000/- per month as and when it falls due, with in a period of six weeks. Hence this affidavit.
2. I submit that in view of the above direction issued by this Hon'ble court. I, by this Affidavit, here by undertaking to the effect that I shall vacate and handover vacant possession of the 20 premises immediately on or before completion of two years from the date of the order passed by thus Hon'ble Court, that is two years from 25-09-2013. I hereby state that I have been paying the rent at the rate of Rs.2,000/- per month from October 2013 to the respondent."
Place: Bangalore Date: 08.11.2013 Deponent"
19. In view of the above, the order passed by this Court confirming the order passed by HRC Court evicting the petitioner has reached finality since he has filed an affidavit of undertaking before this Court that he would vacate and hand over vacant possession of the premises within two years from the date of the order passed by this Court on 25.9.2013. Now the contention of the learned Counsel for the petitioner is that the trial Court decreed the suit and the Lower Appellate Court in RA 15/15 though has recorded a specific finding that the agreement of Sale executed by defendant Nos. 1 to 4 21 in his favour has been proved, ultimately dismissing the suit by allowing the regular appeal is not sustainable since in view of the adverse findings recorded by the Lower Appellate Court though the appeal is dismissed, the Executing Court cannot implement HRC decree passed since the Appellate Court has held that the agreement executed by defendant Nos. 1 to 4 in favour of plaintiff-petitioner has been proved.
20. In the absence of decree to that effect by the Appellate Court, this Court is unable to accede the contention of the learned Counsel for the petitioner. The Lower Appellate Court while allowing the appeal has simply held that the judgment and decree dated 27.11.2011 passed in O.S.No.813/2008 is set aside and consequently, dismissed the suit of the plaintiff- petitioner for the relief of specific performance of contract, declaration and also for permanent injunction. It has also held that the plaintiff-petitioner was entitled 22 for recovery of earnest money of Rs.2,00,000/- from defendant Nos. 1 to 4 with interest at 12% per annum from the date of suit till realization for having executed the Sale agreement. In view of the ultimate result of the Lower Appellate Court, this Court resists to observe any further in view of the pendency of the second appeal before this Court i.e., RSA 2170/2015 and this Court in regular second appeal has to decide the validity of the judgment and decree of the Court below.
21. Once the HRC proceedings initiated i.e., HRC No.42/2009 has reached finality up to this Court on 25.9.2013 in HRRP No.121/2013 affirming the order passed in the HRC, the execution petition filed by the decree holder only to implement the decree passed in the proceedings and orders passed by the HRC Court, the judgment debtor cannot now go beyond the decree passed. What is sought is eviction only on the basis of the orders passed by the HRC Court which has reached 23 finality upto this Court. As on today, the judgment and decree passed by the Lower Appellate Court declaring the Sale as null and void has been set aside and consequently the suit filed by the plaintiff-petitioner was dismissed which is the subject matter of regular second appeal (RSA No. 2170/2017) pending between the parties. Therefore, there is no impediment for the Executing Court to proceed in terms of the orders passed by the HRC Court and re-affirmed by this Court as stated supra.
22. Though the learned Counsel for the petitioner relied upon the three judgments cited supra that the Executing Court had to execute the decree as it stood and subsequent events will preside to implement the decree, there is no quarrel with regard to the law laid down by the Hon'ble Supreme Court and the Orissa High Court in the above three judgments stated supra. Admittedly in the present case, the proceedings 24 initiated in HRC No.42/2009 has reached upto this Court in HRRP 121/2008 and there is chain of subsequent events either with the decree or in respect of parties. The subsequent change is only in the original proceedings i.e., the suit filed by the petitioner is decreed which is reversed by the Lower Appellate Court dismissing the suit holding that the Sale is valid. Therefore, the said judgments relied upon by the learned Counsel for the petitioner has no application to the facts and circumstances of the present case.
23. The trial Court considering the applications filed by both the judgment debtor and decree holder has held that no doubt any change in law or change of events which leads for non execution of decree, court can deny to execute decree, but in present case possession was not delivered to judgment debtor on the basis of agreement of Sale and judgment passed in O.S.No.813/2008 was set aside. It has also held that 25 mere filing of appeal before this Court itself is not sufficient to stay further proceedings in anticipation of outcome of appeal preferred before this Court. If the judgment debtor succeeded in getting the decree for specific performance in his favour, he will get possession only after execution of Sale Deed in his favour. Even at that event he will not be jeopardised because status of judgment debtor at that time was entirely different. He was just tenant and he would become an owner only after execution of Sale Deed in his favour. The petitioner in HRRP 121/2013 also filed an affidavit of undertaking that he would handover the possession within two years from 25.9.2013 but instead of complying with his undertaking and order of this Court, he is abusing the process of law Therefore, the I Additional Civil Judge & JMFC., Mysore (Executing Court) rightly allowed the application filed by the decree holder i.e., I.A.5 and dismissed the applications - I.As.3, 26 4 and 6 filed by the judgment debtor. The same is in accordance with law.
24. Though the HRRP proceedings reached finality on 25.9.2013, the present petitioner has filed an affidavit in pursuance thereon and no application for extension of time is filed before this Court and the affidavit filed by him on 8.11.2013 is binding on him. Therefore, he cannot go beyond the orders passed by this Court and an undertaking is filed by him before this Court as on the date of the orders passed by this Court in HRRP 121/2013 on 25.9.2013 and therefore, there was no decree as on that date. Subsequently, the suit filed by him was decreed on 27.11.2014 declaring that the Sale Deed dated 1.1.2008 obtained by the respondent herein is null and void and the regular appeal -RA 15/15 filed by defendant No.5 was allowed and the impugned judgment and decree dated 27.11.2014 passed in O.S.No.813/2008 was set aside. 27 Therefore, that is not the ground to stall the proceedings in Execution Court in Execution Petition No. 327/2015 which was filed to implement the orders passed in HRC No. 42/2009 which was affirmed in R.R.48/2012 and reaffirmed by this Court in HRRP No.121/2013. Therefore, the Executing Court is justified in rejecting the application of the judgment debtor.
25. The Hon'ble Supreme Court while considering the provisions of Order XXI Rules 97, 99 and 101 of the Code of Civil Procedure in the case Bool Chand (Dead) Through Legal Representatives and Others -vs- Rabia and Others reported in (2016) 14 SCC 270 has held that while a genuine petition for execution of a decree can certainly be considered, the court cannot be oblivious of frivolous objections being filed after a decree is passed in long-drawn contested proceedings. Attempt to deprive the decree-holder of benefit of such decree should be discouraged by the court where such objection is raised. 28 The impugned order is thus, clearly erroneous and unsustainable and not a result of sound judicial approach.
26. With regard to the adverse findings against defendant Nos. 1 to 4 before the Lower Appellate Court as contended by the learned Counsel for the petitioner, the Division Bench of this Court in the case of Manasa Housing Co-operative Society Ltd -vs- Marikellaiah reported in AIR 2006 Kar. 273 has been held that the cross-objections to the decree - defendants-respondents though have not filed any cross-objection or appeal against findings adverse to them, can still change those findings while supporting the judgment and decree in their favour. Further at para-28 it has held as under:
"28. In the light of the provisions of Order 41. Rules 22 and 33 and also in the light of the decisions of the Apex Court and this Court, we find that the defendants-respondents, though have 29 not filed any cross-objection or appeal against findings on issue Nos. 1 and 2, can still challenge those findings while supporting the judgment and decree in their favour. Accordingly, we answer point No.1 in affirmative."
27. In the absence of the decree passed by the trial Court and in view of the pendency of RSA No.2170/2017 before this Court, the fact remains that the suit filed by petitioner came to be decreed which was set aside by the Lower Appellate Court, but the appeal (RSA) is pending consideration. Therefore, this Court resists to observe anything on merits and demerits of the original proceedings between the parties. The eviction order passed in HRC No.42/2009 has reached finality. Therefore, the present petitioner who is the judgment debtor in HRC No.42/2009 wherein the eviction order was confirmed in R.R.48/2012 by the Court of District Judge and by this Court in HRRP 121/2013 as stated supra he is bound by the decree. 30 He cannot go beyond the decree passed in Execution Proceedings. Therefore, the impugned order passed by the trial Court in Execution 327/2015 on the file of the Principal Civil Judge and JMFC., Mysore is in accordance with law. The petitioner has not made out any ground to interfere with the impugned order passed by the Court below under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed.
28. However, it is needless to observe that in case the petitioner succeeds in RSA No.2170/2017 and gets the Sale Deed in his favour, further proceedings in Execution 327/2016 will always be subject to the result of RSA No.2170/2017 which is now pending consideration between the parties.
29. It is also made clear that any adverse finding recorded by the Executing Court and any observations made by this Court while passing the impugned order will not come in the way of either of the parties to 31 establish their rights independently in the appeal pending i.e., RSA No.2170/2017 in accordance with law.
SD/-
Judge Nsu/-