Karnataka High Court
Sri B Sambasivareddy vs M/S Switching Power Conversion Pvt Ltd on 17 February, 2014
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
R.F.A.No.115/2014 (RES)
BETWEEN:
Sri B.Sambasivareddy,
S/o late B.Sadasiva Reddy,
Aged about 61 years,
Having his place of business at
Shed No.C-212, 1st Stage,
IV Cross, Peenya Industrial Estate,
Peenya, Bengaluru-560 058. ... Appellant
(By Sri G.Narahari, Advocate for agraa legal)
AND:
1. M/s. Switching Power Conversion Pvt. Ltd.
A company incorporated under the
Companies Act, 1956 and having its
Place of business at No.105/687,
Laggere Road, 4th Cross,
Peenya Industrial Estate, Peenya,
Bengaluru - 560 068.
Represented herein by its Director
Sri R.Srinivas,
S/o R.Venkataswamy,
Aged about 45 years.
2. Sri Vinayaka Enterprises,
A proprietary concern represented by
Its Proprietor Sri S.C.Anand,
S/o Late Chennagowda,
Aged about 44 years,
2
Having the place of business at
Shed No.C-212, 1st Stage, 4th Cross,
Peenya Industrial Estate, Peenya,
Bengaluru - 560 058. ... Respondents
(By Sri G.Papireddy, Advocate for R-1,
Sri K.G.Nayak, Advocate for R-2)
This Regular First Appeal is filed under Section 96 read
with Order 41 Rule 1 and 2 read with Order 21 Rule 103 of CPC,
against the judgment and decree dated 6.1.2014 passed in
Ex.P.936/2012 on the file of the IX Additional Small Causes
Judge and XXXIV ACMM, Court of Small Causes, Member, MACT-
7, Bangalore, dismissing the application filed under Order 21
Rule 97, 98, 99, 101 and 104 of CPC.
This Regular First Appeal coming on for Admission this
day, the Court delivered the following:
JUDGMENT
This appeal is directed against the order passed by the Execution Court (Court of the IX Additional Small Causes and Additional MACT, Bangalore) dismissing the appellant's application filed invoking order XXI Rule 97, 98, 99, 101 and 104 of CPC, in Execution No.936/2012.
2. The facts of the case in brief are that M/s.State Bank of India filed O.A.No.861/1995 against M/s.Karnataka Enamel Industries for the recovery of its dues. The said proceedings culminated in the issuance of the recovery certificate and the auctioning of 'A' schedule property. In this regard, the sale 3 confirmation order was issued on 18.11.2004 and the sale certificate was issued on 19.11.2004. The respondent No.1 is the auction-purchaser. 'A' schedule property was let out to six tenants. The respondent No.2 is a tenant in respect of 'B' schedule property forming part of 'A' schedule property.
3. The first respondent decree holder filed O.S.No.7469/2007 seeking the relief of ejectment against the respondent No.2. In view of the change in law, the respondent No.1 withdrew the said suit and initiated H.R.C.No.51/2009. The eviction petition was allowed by the Court of the Small Causes on 16.6.2010. This was challenged by the respondent No.2 by filing H.R.R.P.No.210/2010. The said H.R.R.P. was dismissed by this Court, by its order, dated 27.9.2010. The respondent No.1 filed Execution Petition No.936/2012. In the said execution proceedings, the obstructor filed the application invoking order XXI Rule 97, 98, 99, 101 and 104 of CPC. The said application was dismissed by the Execution Court, by its order, dated 6.1.2014 imposing the cost of `2,000/-.
4. Aggrieved by the aforesaid order, this appeal is preferred by the obstructor.
4
5. Sri G.Narahari, the learned counsel for the appellant submits that the very passing of the eviction order is without jurisdiction. He submits that the entire Order XXI of C.P.C. is made applicable for the proceedings before the Debt Recovery Tribunal (DRT). He submits that for recovering the possession of 'A' schedule property, the respondent No.1 ought to have filed appropriate application before the DRT itself. The filing of the H.R.C.No.51/2009 by the first respondent auction purchaser is impermissible. In support of his submissions, he cites this Court's decision in the case of D.RANGAPPA v. MUDLAPPA AND OTHERS reported in ILR 2005 KAR 4759. He submits that it was open to the respondent No.1 to take symbolic delivery and thereafter take actual delivery in a manner known to law.
6. Sri Narahari submits that H.R.C.No.51/2009 is hopelessly barred by limitation. He submits that under Article 134 of the Schedule to the Limitation Act, 1963, the proceedings for the delivery of possession by a purchaser of immoveable property at a sale in the execution of a decree have to be initiated within an outer limit of one year. Even if the limitation is taken from 19.11.2004, the date of the issuance of the sale 5 certificate, the proceedings for the recovery of possession ought to have been initiated before 19.11.2005. Admittedly, the suit was filed in 2007 and HRC in 2009. Even if the plea of limitation is not raised by the defendants, the Court is required to satisfy itself that the suit is not barred by limitation. In support of his submission, he read out Section 3 of the Limitation Act, which is as follows:
"3. Bar of limitation.- (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
7. The learned counsel submits that the eviction order passed by the Court of Small Causes is a nullity in the eyes of law. It cannot therefore be executed.
8. The learned counsel relies upon the Apex Court's judgment in the case of SILVERLINE FORUM PVT. LTD. v. RAJIV TRUST AND ANOTHER reported in AIR 1998 SC 1754, wherein it is held that if a third party resists the execution of decree, adjudication is warranted. He has also relied on the Apex Court's judgment in the case of HARNANDRAI BADRIDAS v. 6 DEBIDUTT BHAGWATI PRASAD AND OTHERS reported in AIR 1973 SC 2423.
9. Sri G.Papireddy, the learned counsel for the respondent No.1 submits that Rule 97 of Order XXI of C.P.C. is for the benefit of the decree-holders. Invoking the said Rule, the appellant cannot file any application, more so when the auction- sale and its confirmation in favour of the respondent No.1 are not challenged by the appellant. He submits that admittedly, when the appellant is not in possession of the schedule 'A' property, none of his rights are being affected by the order for the eviction of the tenants. He submits that the appellant cannot file obstruction application for and on behalf of the tenants.
10. Sri Papireddy submits that the respondent No.1 steps into the shoes of the appellant on purchasing the schedule 'A' property and that by virtue of the same, he becomes the landlord of the respondent No.2 in respect of the 'B' schedule property. He submits that Article 134 of the schedule to the Limitation Act has no application for the case on hand because 'A' schedule property is not in the possession of the appellant at all. The Article applicable is 65(c), which provides for 12 years' 7 limitation for the possession of the immoveable property where the suit is by a purchaser at a sale in execution of a decree when the judgment-debtor was out of possession as on the date of the sale. The purchaser shall be deemed to be a representative of the judgment - debtor, who was out of possession.
11. Sri K.G.Nayak, the learned counsel for the respondent No.2 submits that the respondent No.2 has not committed default in the payment of the rent and that it has been paying the rent to the appellant.
12. The submissions of the learned counsel have received my thoughtful consideration.
13. It is not in dispute that the schedule 'A' property is purchased by the respondent No.1 in the auction conducted pursuant to the orders of the DRT. It is also not in dispute that the appellant has not challenged the auction-sale, auction- confirmation and the issuance of sale letter in favour of the respondent No.1. Thus, he is not in a position to show the title to the schedule 'A' property.8
14. Further, it is also not in dispute that all the six units formed out of schedule 'A' property are let out to the tenants. The appellant is not in possession of the 'A' schedule property. Therefore, he cannot resist the dispossession of the tenants. The arguments with regard to Article 134 and the H.R.C. proceedings being without jurisdiction are already negatived by the Court of Small Causes. Further, the order of the Court of Small Causes is also confirmed by this Court in H.R.R.P.No.210/2010.
15. It is worthwhile to notice that the H.R.C. proceedings were seriously contested by the respondent No.2. Taking every possible plea, it took the matter to its logical culmination by filing H.R.R.P.No.210/2010 in this Court. Therefore, it cannot be said that there is any collusion between the respondent No.1 and the respondent No.2. It is profitable to refer to the Calcutta High Court judgment in the case of MANOHAR KUMAR KANKARIA AND ANOTHER v. Sk. Md. SHAWKAT AND OTHERS reported in AIR 2006 CALCUTTA 256. The relevant paragraph of the said judgment is extracted hereinbelow:
9. ...........It appears from the decree itself and the records that the application under Chapter XIIIA was seriously contested and all possible points were taken and 9 dealt with by the Learned Judge by passing decree.
Moreover an appeal was preferred against this judgment and decree and this decree sustained upon hearing of appeal and dismissal of the same. On the face of the aforesaid proven fact how it can be said that decree was obtained in collusion with the defendants and fraudulently.......
16. The Execution Court is justified in dismissing the application filed by the appellant. However, the Execution Court appears to have missed track of one aspect of the matter. The appellant has filed O.S.No.2073/2012 seeking, inter alia, the relief of declaration that the eviction order, dated 16.6.2010 passed by the Court of the Small Causes in H.R.C.No.51/2009 is null and void and that therefore it is not binding on him. When the said suit is pending, the execution of the eviction order has to be subject to the outcome of O.S.No.2073/2012. The execution of the eviction order has to with the rider as prescribed by Order XXI Rule 104 of CPC.
17. In the result, the Execution Court's order, dated 6.1.2014 dismissing the appellant's I.A. is upheld. However, it is made clear that the execution of the eviction order in H.R.C.No.51/2009 as confirmed in H.R.R.P.No.210/2010 is 10 subject to the result of the pending suit, namely, O.S.No.2073/2012. This appeal is disposed of with this modification. No order as to costs.
Sd/-
JUDGE MD