Karnataka High Court
Ashok Shamanna vs Nayeem Khan on 1 January, 1800
ORDER 21 RULE 29--Executing Court rejecting application filed undar Order 21 Rule 29. (B) CIVIL PROCEDURE CODE, 1908 (CENTRAL ACT N0.5 OF 1908) - SECTION 115--ORDER 29 RULE 29 R/W SECTION 151 OF CPC. Whether an application filed by legal heir of deceased JDR, to stay executing proceedings on the ground that a suit is pending between himself and original decree holder is maintainable. (C) KARNATAKA RENT ACT, 2001 (KARNATAKA ACT No. 34 OF 2001) - SECTION 46(1)--Held in Revision : Held: An application filed under Order 21 Rule 29 can be filed by a party to an execution proceedings, if there is a suit pending between the very parties before competent Civil Court and on concerning the validity of the order sought to be executed but not as a legal representative of or claiming under original JDR. Further Held on Facts: A similar application had been filed by the 1st Legal heir of the original JDR is rejected. The application filed by the 2nd legal heir of the original JDR was tenable. The conduct of the tenant revision petitioner instituting collateral litigation and exploring one alternative or the other to avoid eviction - such practice deprecated. HRRP dismissed. ORDER Shylendra Kumar, J.
1. This House Rent Revision Petition under Section 46(1) of the Karnataka Rent Act, 1999 is directed against the order dated 8.11.2002 passed on I.A. 13 in pending Execution Case no. 10110/ 95 on the file of the Court of the Small Causes Judge, Mayo-Hall, Bangalore.
2. I.A. 13 had been filed under the provisions of Order 21 Rule 29 read with Section 151 of the Code of Civil Procedure by the second legal representative of the deceased judgment debtor by name Smt. Radhamma. The application was one for staying all further proceedings in the execution case during the pendency of O.S.No. 9027/01 on the file of the City Civil Court, Bangalore City, which suit had been instituted by the second legal representative of deceased Radhamma namely Sri Ashok Shamanna s/o Radhamma Shamanna as against the decree-holder praying for a declaration that the eviction order passed in H.R.C. 10232/86 which was sought to be executed in Execution Case before the Executing Court in Ex.Case No. 10110/95 was not binding on the plaintiff therein, that the eviction order is of no consequence in law for the purpose of disturbing the possession of the plaintiff, that the plaintiff being in possession of the schedule property in respect which execution has been taken in his capacity as a heir of late Shamanna who was the original tenant in respect of the premises in question.
3. The Trial Court, after looking into the application and the objections filed in opposition to the same and after hearing elaborate submissions made on behalf of the parties by their learned Counsel, was of the view that the applicant had not shown sufficient grounds to allow the application and for staying the further proceedings in the execution case during the pendency of O.S. 9027/01 and accordingly dismissed the same. It is aggrieved by this order of dismissal of his application, the applicant is in revision before this Court.
4. I have heard Sri Shekar Shetty, learned Counsel appearing for the revision petitioner. Mr. Shekar Shetty has raised several contentions and submits that prima facie the eviction order that had come to be passed in H.R.C.No. 10232/86 is not one that is valid in law; that the eviction order having been obtained as against his mother Smt. Radhamma who was only one of the heirs to his father late Shamanna who was the original tenant and the decree-holder land-lord having not chosen to implead all the heirs of late Shamanna as parties to the eviction petition, the eviction order is not a valid order in the eye of law and at any rate it does not bind the other heirs of Shamanna other than Smt. Radhamma who had been impleaded as a party to the H.R.C. proceedings and as such in the execution case pursuant to such an eviction order, an application of this nature was more tenable and necessary, particularly in the light of the development of the applicant himself having filed a separate suit in his own capacity for getting over the effect of the eviction order and it was just and necessary for the Executing Court to have stayed further proceedings and to await the outcome of the original suit which the applicant had filed before the competent Court.
5. Learned Counsel for the revision petitioner submits that in the execution case subsequent to the death of the judgment debtor Smt. Radhamma, the applicant had been brought on record in his capacity as a heir of late Smt. Radhamma; that the premises in respect of which an eviction order is obtained is a commercial premise where late Shamanna was carrying on certain business activity and after his death, his sons have been carrying on the business activity; that he being one of the sons of late Shamanna, is entitled to carry on business as heir of late Shamanna and particularly so when the decree holder who had purchased the property from the erstwhile owner was aware that late Shamanna was a tenant even under the erstwhile owner and the tenancy of Shamanna having been attorned in favour of the subsequent purchaser. Learned Counsel submits that in view of such facts and development, Smt. Radhamma was not the only person who had inherited the tenancy rights of late Shamanna, but all his legal heirs had equal rights and an eviction order obtained against only as against one of the legal heirs of the deceased Shamanna who was the original tenant, is of no consequence in law.
6. The learned Counsel has relied upon the following decisions in support of his submission:-
1) ILR 1982 KAR 3632
2) TEXTILE ASSOCIATION (INDIA) BOMBAY UNIT v. BALMOHAN GOPAL KURUP AND ANR, .
3) M/S. PARAMOUND INDUSTRIES AND METAL FINISHERS v. SMT. C.M. MALLIGA, 1990(3) KAR.L.J. (Supp.) 437
4) NARESH CHANDRA AGARWAL v. BANK OF BARODA AND ORS.,
7. Learned Counsel also further submits that the applicant -revision petitioner had been brought on record in the execution case as the original judgment debtor Smt. Radhamma died during the pendency of the execution case before the Court below as on 24.2.1998 and thereafter an application had been filed for bringing the legal representatives and it is in his capacity as a legal representative of the original judgment debtor that he had been brought on record and as such he is prevented from pleading all such defences that are open and available to him being a heir to the original tenant Shamanna in the execution case and as he is not permitted in law to plead such defence as are open to him in his own right as a heir of late Shamanna; that being a legal representative of Radhamma who had suffered the eviction order in H.R.C. 10232/86, he is estopped from contending to the contrary about the validity of that order in his capacity as a legal representative of deceased judgment debtor Smt. Radhamma and as such had instituted a separate suit to vindicate his rights and in such circumstances, when an application of this nature had been made, it was all the more necessary for the Trial Court to have stayed further proceedings in the execution case.
8. Learned Counsel for the respondent has countered the submissions for the petitioner has supported the impugned order and prays for dismissal of the Revision Petition.
9. Learned Counsel for the respondent points out that the eviction petition itself was filed in the year 1986; that the eviction petition was fought bitterly, that all the sons of Radhamma, who claimed to have been carrying on business including the present revision petitioner-applicant were aware of the proceedings; that late Radhamma in fact fought the eviction petition on merits and on behalf of all the heirs of deceased Shamanna; that an eviction order came to be passed on merits particularly having regard to the bona fide case of the eviction petitioner and that in fact the eviction order had been further challenged by Smt. Radhamma by filing revision petition to the High Court in H.R.R.P. 3783/88 which came to be dismissed as on 4.4.1995 by the High Court granting a further six months' time for the tenant to vacate and the matter in fact had been carried to the Supreme Court also by the tenant but without success. It was only thereafter the eviction order was sought to be put into execution in the year 1995 and ever since various hurdles are being put forth by the tenant judgment debtor and subsequent to the death of original judgment debtor Smt. Radhamma further proceedings are being instituted by her sons and grand children but without success and only with a view to protract the proceedings.
10. I have given my anxious consideration to the submissions made by the learned Counsel for the parties.
11. It is a fact that the eviction case was filed in the year 1986 and it is not in dispute that Smt. Radhamma and her children were living together and there was no conflict of interest. The eviction petition had been resisted and had been opposed vehemently. It took almost a decade for it to end and to reach its culmination and it is only thereafter it is sought to be executed. It cannot be said that the present revision petitioner applicant in I.A. 13 was not aware of such developments.
12. In this revision petition this Court is only concerned with the correctness of the order passed by the Trial Court declining to stay further proceedings in the execution case. The Trial Court has given good and cogent reasons as to why an application of this nature cannot be allowed. This apart, I find that the application itself has been filed under Order 21 Rule 29 read with Section 151 of the Code of Civil Procedure. An application of this nature can be filed by a party to an execution proceedings praying for stay of the execution of the proceedings if there is a suit pending between the very parties before the competent Civil Court and concerning the validity of the order sought to be executed. In the present case, the suit filed by the applicant - revision petitioner is one for invalidating the order of eviction passed in H.R.C. 10232/86 in his own capacity and not as a legal representative of or claiming under the judgment debtor Smt. Radhamma. In this view of the matter, it cannot be said that an application of the present nature ought to have been entertained by the Court below when the suit filed before the Civil Court and pending was not one between the parties in the execution proceedings, to be precise, the capacity in which the suit had been filed by the applicant- revision petitioner being different from the capacity in which he is on record in the execution proceedings.
13. The granting of stay order or otherwise on an application of this nature is dependent on the facts of each case and the Trial Court being satisfied with the bona fides of the person making the application. The Trial Court was not satisfied about the bona fide of the applicant, particularly having regard to the conduct of the applicant having regard to the various other collateral litigations that had been generated between the parties at the behest of the applicant revision petitioner or other persons in similar capacity.
14. Moreover, the applicant had been brought on record as a legal representative of the deceased Radhamma who died on 24.2.1998. The suit has come to be filed in the year 2001 by this application. But an application of this nature is filed much later, i.e. on 7.8.2001. It is very obvious that the applicant-revision petitioner is exploring one alternative or the other to avoid the eviction order in H.R.C. 10232/87 being executed in Ex. Case No. 10110/95. The conduct of the applicant does not inspire confidence in this Court. In fact a similar application that had been filed under the provisions of Order 21 Rule 29 read with Section 151 CPC by the 1st legal heir of the deceased judgment debtor on identical grounds had been dismissed by the executing Court on 24.9.2001 while passing orders on I.A. 8. It is not as though the deceased judgment debtor Smt. Radhamma and these applicants are either strangers or that these persons were ignorant of the litigation that was being fought by late Smt. Radhamma.
15. The authorities referred to and relied upon by Sri Shekhar Shetty learned Counsel for the petitioner in no way supports or furthers the case of the petitioner.
16. There is neither any merit nor any scope for interference by this Court, particularly when the very application under Order 21 Rule 29 read with Section 151 C.P.C. was not tenable. There is neither justification nor need to interfere with the impugned order in the exercise of revisional jurisdiction under Section 115 CPC.
17. In the circumstances, this Revision Petition is dismissed without being admitted.