Karnataka High Court
Shri. Mohan Laxmanrao Kulkarni vs Shri. Sreemad Veerashiva on 17 December, 2024
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CRP No. 100201 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CIVIL REVISION PETITION NO.100201 OF 2022
BETWEEN:
1. SHRI. MOHAN LAXMANRAO KULKARNI,
AGE: 77 YEARS, OCC: BUSINESS,
2. SMT. RADHABAI MOHAN KULKARNI,
AGE: 73 YEARS, OCC: HOUSEHOLD,
BOTH ARE R/O: T.P. NO.67,
SHIVANAND THEATOR,
(GURUSIDDESHWAR TAKIS),
CANTEEN COMPOUND,
BELAGAVI-RAICHUR ROAD,
BAGALAKOTE.
... PETITIONERS
(BY SRI. SHREEVATSA HEGDE, ADVOCATE)
AND:
1.
Digitally signed
by V N BADIGER
SHRI. SREEMAD VEERASHAIVA
VN
Location: HIGH
COURT OF
SHIVAYOG MANDIR PUBLIC TRUST
KARNATAKA
BADIGER DHARWAD REPRESENTED BY ITS PRESENT PRESIDENT,
BENCH
Date: 2024.12.20
15:39:37 +0530
SHREE. M.N.P. KUMAR SWAMIGALU, HANGAL,
R/O: HANGAL, DIST: HAVERI,
OFFICE OF TRUST SHIVANAND JINNING FACTORY
BY ITS AUTHORIZED MANAGER,
DHR NO.2.-581 104.
2. SHRI. S.A. HANCHINAL,
AGE: 60 YEARS, OCC: SECTION
OFFICER IN DHR NO.1 OFFICE,
R/O: SHIVANAND JINNING FACTORY,
BAGALAKOTE-587 101.
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CRP No. 100201 of 2022
3. SHRI. BASAVRAJ BALAPPA ABBAYI,
AGE: 61 YEARS, OCC: BUSINESS,
MOHAN LINGAYAT KHANAVALI,
R/O: T.P. NO.67, MUNCIPAL NO.67/5,
(GURUSIDDESHWAR TALKIES),
CANTEEN COMPOUND,
BELAGAVI-RAICHUR ROAD,
BAGALAKOTE-587 101.
4. SHRI. MOHAN PASPARENCY ,
AGE: 59 YEARS, OCC: BUSINESS,
ABUBAKAR MOMIN,
R/O: T.P. NO.67,
MUNCIPAL NO.67/5,
(GURUSIDDESHWAR TALKIES)
CANTEEN COMPOUND,
BELAGAVI-RAICHUR ROAD,
BAGALAKOTE-587 101.
5. SHRI. VIJAYKUMAR SHETTI,
AGE: 63 YEARS, OCC: BUSINESS,
UDUPI HOTEL, NEW MOHAN,
R/O: T.P. NO.67, MUNCIPAL NO.67/5
(GURUSIDDESHWAR TALKIES)
CANTEEN COMPOUND,
BELAGAVI-RAICHUR ROAD,
BAGALAKOTE-587 101.
6. PRAKASH GOVIND BHAVASARE,
AGE: 62 YEARS, OCC: BUSINESS,
R/O: T.P. NO.67, MUNCIPAL NO.67/5,
(GURUSIDDESHWAR TALKIES),
CANTEEN COMPOUND,
BELAGAVI-RAICHUR ROAD,
BAGALAKOTE-587 101.
... RESPONDENTS
THIS CRP IS FILED UNDER SEC.115 OF CPC, PRAYING TO
SETTING ASIDE THE IMPUGNED ORDER DATED 02.11.2022
PASSED IN EXECUTION PETITION NO.25/2002 BY PRINCIPAL
SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE
BAGALAKOTE.
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CRP No. 100201 of 2022
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
21/11/2024, COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CAV ORDER
The present petition is filed aggrieved by the order dated
02.11.2022, passed in Exc. No.25/2002, by the Prl.Senior Civil
Judge and CJM, Bagalakot, the judgment debtors (hereinafter
referred to as Jdr) are before this Court.
2. The Decree holders (hereinafter referred to as
Dhr) have filed a petition pursuant to the judgment and
decree passed in O.S.No.193/1996, dated 05.01.2000
seeking the relief of possession and to direct them to pay the
arrears of rent of Rs.50,000/-. The Jdr.Nos.1 and 2 have filed
objections to the main petition contending that only after
establishing the right to seek possession, Dhr. can seek the
relief of possession. It is stated that Jdr.No.3 is a contractor,
who runs service in the premises maintained by Jdr Nos.1 and
2 and Jdr No.4 is a partnership firm, which is situated in part
of premises let out to Jdr No.1. Both, Jdr Nos. 5 and 6 also
runs business in the schedule property. It is their case that
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CRP No. 100201 of 2022
Judgment debtors have not violated any of the terms of the
contract and they have already paid Rs.50,000/- in cash and
deposited Rs.62,000/- and Rs.3,000/- vide CCD No.36/12/09
and CCD No.33/4/9 respectively. It is also stated that Jdr.No.
1 has filed O.S.No.141/2000 before the Prl.Civil Judge,
Bagalakot and this Dhr has also appeared in the said suit.
Hence, they sought for dismissal of the petition. The Trial
Court after hearing the both the counsels an order was
passed on 20.02.2010 by allowing the petition in part by
directing to Jdr.Nos.1 and 2 to pay arrears of rent of
Rs.50,000/- within one month from the date of the order and
in default to handover the vacant possession of suit premises
to decree holders. Challenging the said order, the Dhrs have
preferred CRP.No.1063/2010 and Jdrs have preferred
CRP.No.1065/2010. Both the civil revision petitions were
clubbed together and a common order was passed by the this
Court by dismissing the CRP.No.1065/2010 filed by the sub
lessee and allowed CRP.No.1063/2010 filed by original lessee
and remitted back the matter to hold fresh enquiry. The Jdr
No.1 came to be further examined as D.W.1 and he has relied
upon Ex.D.54 to 59(A) to (i). As per submission made by
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CRP No. 100201 of 2022
learned counsel for Dhr, further enquiry on behalf of the Dhr.
is taken as nil. The Trial Court had particularly considered
paragraph No.12 of the order of this court in
CRP.No.1063/2010 and 1065/2010, wherein the this Court
has observed "the Executing Court has to take judicial note of
these documents and thereafter proceed to determine as to
whether the decree holder (original lessee), who himself was
a lessee can proceed with the execution petition and seek
possession of the property over which the judgment debtor is
asserting possessary right by basing his claim on a fresh lese
executed by one of the landlords. If the lease in favour of the
decree holder (original lessee) has expired, then what
emerges is that he continues to hold possession as statutory
tenant. When original lessee himself is claiming to be in
juridical possession, then the question that would arise is as
to whether he can enforce and seek ejectment, when he
himself is facing an ejectment suit in O.S.No.153/2010. All
these disputed facts can be examined and the same is well
within the jurisdiction of executing Court, as claims can be
decided under Section 47 of the Code of Civil
Procedure." Considering the observations of this Court in the
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CRP No. 100201 of 2022
CRP, the learned Judge has observed that the Court has to
consider and appreciate the documents produced by the Jdrs.
and is bound to determine whether the Dhrs, who is a original
lessee can proceed with this petition and seek possession of
the property when the Jdr is claiming on a fresh lease deed
executed by one of the landlord. Secondly, if in case of expiry
of lease deed in favour of Dhr. Whether he continued to hold
possession as a statutory tenant. So, the question for
consideration is whether Dhr can enforce and seek delivery of
possession, when he himself is facing a suit for ejectment in
O.S.No.114/2012 filed by the landlord under Section 47 of
the CPC. The Trial Court had considered Ex.P.54 to 59(a) to
(i). The Trial Court has observed that the Dhr has failed to
prove that the Jdr Nos.1 and 2 have sub leased the property
to the others i.e. Jdr. Nos.3 to 6. No materials are placed by
the Dhr to prove the sub lease, but it is evident that Jdr has
violated the condition Nos.2 and 6 of the compromise decree
entered into between the parties before DLSA. As per the
order passed in CRP.Nos.1063/2010, CRP.No.1065/2010 by
this Court, JDr.Nos.1 and 2 have proved that they have
entered into a fresh deed of lease with original landlord
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CRP No. 100201 of 2022
during the year 2010 and it is also not disputed that
O.S.No.114/2012 is pending for ejectment. Though the
compromised is entered in the year 2000. The Jdrs has raised
a plea that from the year 2010, he has entered into a lease
agreement with landlord. However, he is not disputing that at
the time of passing of consent decree, he was a lessee under
the Dhr and the execution petition is filled. Since, the
Jdr.No.1 and 2 failed to deposit rent of Rs.3,000/- per month
from 01.12.1999 and also failed to deposit rent of
Rs.10,000/- per month from 01.02.2000 consecutively for
two months. Now, the Jdr has raised a new plea which goes
to the root of the jurisdiction of the Court and he is estopped
from deviating from the terms of the compromise decree. The
Trial Court comes to the conclusion that Jdr has violated
condition Nos.2 and 6 of the compromise decree. The landlord
has filed a suit for ejectment against the present Dhr and Jdr
in O.S.No.114/2012 and the landlord has all the liberty to get
the possession from the parties to the suit. Even if the Jdr
has vacated and handover the possession to Dhr ultimately,
the landlord will get the possession of the property. Though
Jdrs. might have entered into a fresh deed of lease during the
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CRP No. 100201 of 2022
year 2010 and he cannot deny regarding their tenancy under
Dhr from the year 2000 till 2009. The Jdr No.1 has clearly
admitted in his chief affidavit regarding his tenancy under
Dhrs. The Trial Court has observed that on going through
order sheet dated 30.01.2022, the Jdr Nos.1 and 2 have
deposited a rent amount of Rs.50,000/- but regarding
condition No.6 of the compromise decree, Jdrs failed to
deposit the rent amount of Rs.10,000/- per month from
01.02.2000 for the consecutive two months and hence, Dhr is
entitled for the possession in terms of the consent decree.
Accordingly, the petition filed by the Dhr is allowed in part
and Jdr.Nos.1 and 2 are directed to handover the vacant
possession of decree schedule property to Dhr within three
months from the date of passing of the order, since they
failed to comply with condition Nos.6 of the compromise
decree.
3. Learned counsel appearing for the petitioners/Jdrs
submits that the executing Court ought not to have overcome
the mandate of the order passed by this court in the very
same case. The tenor of the order is such that it apparently
makes the inquiry conducted by the Executing Court 'sham of
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an enquiry'. It is submitted that the executing Court without
understanding the import and purport of the order passed by
the court in the revision petition makes an unconvincing and
feeble attempt by relying upon irrelevant precedence to
justify it's refusal to implement the mandate of the order
passed by this Court. He submits that the order passed by
Executing Court is self-contradictory at many places, the
Executing Court erroneously and strenously records finding
that the direction issued by this court cannot be complied in
paragraph Nos.23, 26, 27 to 40. He submits that the
Executing Court has failed to read Section 47 of CPC in proper
perspective. When the Mandate of this court was to examine
the excitability of the decree all that the Executing Court does
is to sit in appeal over the order of this Court. He submits
that the Executing Court has failed to take note of the fact
that by virtue of the order passed by this Court, the question
of dispossession does not arise at all. At the most, the
Executing Court could have given symbolic possession. He
submits that the Executing Court has failed to understand
that the possession of the revision petitioners does not
become unlawful as rights of being sub-lease have merged
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into better rights being direct lease hold rights under the
original landlords. He submits that the Executing Court could
not have criticized the order passed by this Court being
excess of jurisdiction and the Executing Court has failed to
comply with the order passed by this Court in the
CRP.No.1063/2010, CRP.No.1065/2010 and the order that is
passed by the Executing Court is contrary to the mandate of
this Court and the same needs to be set aside.
4. Having heard learned counsel for the petitioners,
perused the entire material on record. The respondent No.1
was lessee under the family of one Desai. The lease was for a
period of 99 years ending in 2009, which stood expired
terminated by efflux of time. A quick notice under Section
106 of the Transfer of Property Act was issued by the landlord
and thereafter, the landlord has filed a suit for eviction i.e.
O.S.No.114/2012. The original lessee that is the first
respondent herein has subleased the portion of the property
to the petitioners. The first respondent, who was claiming to
have terminated the sub lease of the petitioners herein has
instituted a suit for recovery of possession i.e. OS
No. 193/1996, which was decreed by the judgment and
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CRP No. 100201 of 2022
decree dated 05.01.2000 pursuant to a compromise between
the parties. Thereafter, the decree holder has filed a petition
for execution that is EP No.25/2002 for possession and
recovery of the arrear to the tune of Rs.50,000/-. Against
the orders passed, CRP.No.1063/2010 and
CRP.No.1065/2010 were filed before this Court, the
petitioners herein, who are the sub-lessees have submitted
that during the pendency of the execution petition one of the
owner has executed a fresh deed of lease, which is being
extended from time to time and they are entitled for the
protection and it cannot be taken away by executing the
decree. Then this court had disposed of the revision by order
dated 16.04.2021. This Court has directed the Trial Court to
take judicial note of the documents, where the fresh lease is
executed in favour of the petitioners herein and also directed
the Trial Court whether the petitioners can be ejected when
they themselves ie. Jdrs are facing the ejectment suit in
O.S.No.153/2010. The Court by order impugned held that
conduct of the petitioners is contrary to terms and condition
of the compromise memo, which is binding on the parties.
Even according to JDrs., one of the owners have executed a
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lease in his favor. Even then, in the light of the compromise
memo, the Jdrs cannot maintain the possession as the
compromise decree is staring at them. Then coming to the
ejectment suit that is filed by the original owner against the
lessee, who has sub-leased the property in favor of these
petitioners that will be looked into and appropriate orders will
be passed by the court in the said suit. The petitioners herein
is estopped from raising all these issues in an execution
petition, which is filed pursuant to a compromised decree and
unless and until that judgment and decree is altered or any
other subsequent orders are passed, the petitioners cannot
seek shelter under Section 47 of CPC. they cannot say
anything with regard to the pending suit and the right of the
original lessee as all these issues were decided by the
court. The Trial Court as per the orders passed by this court
has conducted enquiry and has come to a just and reasonable
conclusion. The submission made by the learned counsel that
this Court has over reached the orders passed in the revision
and all those allegations, this Court cannot consider as the
order that is passed by the Trial Court is a just and
reasonable one. In fact, the petitioners are trying to take
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advantage of some of the findings or the observations in the
revision petition and in the considered opinion of this Court,
the Trial Court has rightly dealt with all these issues and
rightly passed the order directing to hand over the vacant
possession of the decree schedule property to the decree
holder within three months from the date of passing of the
order. This Court do not find any reason to interfere with the
order passed by the Executing Court. Accordingly, this Court
is passing the following:
ORDER
i) The Civil Revision Petition is dismissed.
ii) All I.As. in this Civil Revision Petition shall stand closed.
Sd/-
JUSTICE LALITHA KANNEGANTI VB CT:BCK LIST NO.: 1 SL NO.: 2