Karnataka High Court
Smt. Laxmibai Yeshwant Shimpukade vs Shri. Suresh Govind Babanagare on 14 February, 2022
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
CRP NO.100032 OF 2021
BETWEEN
1. SMT. LAXMIBAI YESHWANT SHIMPUKADE
AGE. 74 YEARS,
OCC. HOUSEHOLD WORK,
R/O. OLD P.B.ROAD,
NEAR RAJASHREE THEATRE , NIPPANI
TQ. CHIKODI,
NOW NIPANI TALUKA
DIST. BELAGAVI-591237
2. SHAKUNTALKA NARAYAN SHIMPUKADE
AGE. 69 YEARS,
OCC. HOUSEHOLD WORK,
R/O. OLD P.B.ROAD,
NEAR RAJASHREE THEATRE , NIPPANI
TQ. CHIKODI,
NOW NIPANI TALUKA
DIST. BELAGAVI-591237
3. SOMNATH S/O.NARAYAN SHIMPUKADE
AGE. 54 YEARS,
OCC. BUSINESS,
R/O. OLD P.B.ROAD,
NEAR RAJASHREE THEATRE , NIPPANI
TQ. CHIKODI,
NOW NIPANI TALUKA
DIST. BELAGAVI-591237
ANIL NARAYAN SHIMPUKADE,
SINCE DIED BY LRS
2
4. SMT. VAISHALI W/O. ANIL SHIMPUKADE
AGE. 35 YEARS,
OCC. HOUSEHOLD WORK,
R/O. OLD P.B.ROAD,
NEAR RAJASHREE THEATRE , NIPPANI
TQ. CHIKODI,
NOW NIPANI TALUKA
DIST. BELAGAVI-591237
5. SHARDHA (SHRADHA) D/O. ANIL SHIMPUKADE
AGE. 15 YEARS, OCC. STUDENT,
R/O. OLD P.B.ROAD,
NEAR RAJASHREE THEATRE , NIPPANI
TQ. CHIKODI,
NOW NIPANI TALUKA
DIST. BELAGAVI-591237
SINCE MINOR REPRESENTED BY PET NO.4 MOTHER
6. KUMAR ADITYA S/O. ANIL SHIMPUKADE
AGE. 12 YEARS,
OCC. STUDENT,
R/O. OLD P.B.ROAD,
NEAR RAJASHREE THEATRE , NIPPANI
TQ. CHIKODI,
NOW NIPANI TALUKA
DIST. BELAGAVI-591237
SINCE MINOR REPRESENTED BY PET.NO.4 MOTHER
7. SHRI. RAJENDRA
S/O. NARAYAN SHIMPUKADE
AGE. 49 YEARS,
OCC. BUSINESS,
R/O. OLD P.B.ROAD,
NEAR RAJASHREE THEATRE , NIPPANI
TQ. CHIKODI,
NOW NIPANI TALUKA
DIST. BELAGAVI-591237
8. NAMRATA NARAYAN SHIMPUKADE
AGE. 35 YEARS,
OCC. HOUSEHOLD WORK,
R/O. OLD P.B.ROAD,
3
NEAR RAJASHREE THEATRE, NIPPANI
TQ. CHIKODI,
NOW NIPANI TALUKA
DIST. BELAGAVI-591237
9. ASHOK DAULA SHIMPUKADE
AGE. 79 YEARS, OCC. BUSINESS,
R/O. OLD P.B.ROAD,
NEAR RAJASHREE THEATRE, NIPPANI
TQ. CHIKODI,
NOW NIPANI TALUKA
DIST. BELAGAVI-591237
SHRI. VILAS DAULA SHIMPUKADE
SINCE DIED BY LRS
10. SUVARNA VILAS SHIMPUKADE
AGE. 63 YEARS, OCC. HOUSEHOLD,
R/O. OLD P.B.ROAD,
NEAR RAJASHREE THEATRE, NIPPANI
TQ. CHIKODI,
NOW NIPANI TALUKA
DIST. BELAGAVI-591237
11. VAISHALI KISHORE HARDARE
AGE. 43 YEARS,
OCC. HOUSEHOLD,
R/O. BHIVASHI
TQ. CHIKODI,
NOW NIPANI TALUKA
DIST. BELAGAVI-591241
12. SANTOSH VILAS SHIMPUKADE
AGE. 40 YEARS,
OCC. HOUSEHOLD
R/O. OLD P.B.ROAD,
NEAR RAJASHREE THEATRE , NIPPANI
TQ. CHIKODI,
NOW NIPANI TALUKA
DIST. BELAGAVI
13. SOU. SHUBHANGI ANNASAHEB MAHEKAR
AGE. 35 YEARS,
4
OCC. HOUSEHOLD WORK,
R/O. NEAR BUS STAND,
2ND LANE A/P. MANAGOAN,
HATAKANGALE,
DIST. KOLHAPUR-416118
14. VITHU DAULU SHIMPUKADE
AGE. 65 YEARS,
OCC. BUSINESS,
R/O. SHRIPEWADI,
TQ. CHIKODI,
NOW NIPANI TALUKA
DIST. BELAGAVI-591237
...PETITIONERS
(BY SRI. VITTHAL S TELI, ADVOCATE)
AND
SHRI. SURESH GOVIND BABANAGARE
AGE. 65 YEARS,
OCC. AGRICULTURE,
R/O. TELI GALLI
NIPANI TALUKA,
DIST. BELAGAVI-591237
...RESPONDENT
(BY SRI. BALAGOUDA PATIL, ADVOCATE)
THIS CRP IS FILED UNDER SECTION 115 OF CPC PRAYING
TO SET ASIDE THE ORDER ON MAIN PETITION DATED 06.07.2021
IN E.P.NO.118/2013 ON THE FILE OF THE ADDITIONAL CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, NIPANI, AND
THIS REVISION PETITION MAY KINDLY BE ALLOWED IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS CRP COMING ON FOR DICTATING ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
5
ORDER
The captioned civil revision petition is filed by the judgment-debtor/tenant assailing the order dated 06.07.2021 passed by the Executing Court in E.P.No.118/2013 wherein executing court has held that respondent/decree-holder can maintain a petition and seek enforcement of a decree passed in HRC No.5/1971 and the new Act has no application to the present case on hand.
2. The respondent/decree-holder filed eviction petition in HRC No.5/1971 against the petitioner. The said HRC petition was allowed with a condition that the father of respondents is entitled to take possession of premises subject to he seeking delivery of southern portion of CTS No.3559 and he has to secure the possession within six months. Feeling aggrieved, the father of the respondents preferred an appeal in HRC Appeal No.15/1972. The said appeal was allowed and the condition was relaxed and 6 the order passed by the Appellate Court was confirmed by this Court in CRP No.642/1975. In terms of directions issued by the HRC Court in HRC No.5/1971, the father of the respondents sought possession of the southern portion which was in possession of another tenant in HRC No.8/1972. The HRC Court allowed the eviction petition by order dated 28.09.1976 against which tenant preferred an appeal in HRC Revision No.40 and 41/1976. The said revision was allowed by order dated 03.03.1978 and the HRC petition filed by the father of the respondents was rejected against which the father of the respondents filed CRP No.1829/1978. The said revision petition was allowed by this Court on 10.06.1983, against which the tenant preferred special leave petition before the Hon'ble Apex Court and the same was admitted by the Hon'ble Apex Court and was numbered as Civil Appeal No.11408/1983. The Hon'ble Apex Court allowed the said civil appeal by holding that the provisions of Rent Act are 7 not applicable and consequently, dismissed the eviction petition filed by the father of the respondents. It is in this background, the father of respondents was compelled to issue notice under the provisions of Transfer of Property Act and the suit for ejectment was filed in O.S.No.2/2004. The said suit was decreed and in terms of decree, the execution petition was filed and possession was taken in the year 2012. It is in this background, the present execution petition was filed after securing possession of southern portion in terms of direction issued by the HRC Court in HRC No.5/1971.
3. In the present execution petition, the present petitioner has tendered appearance and filed detailed objections to the revision on the ground that the present execution petition is barred by limitation as the order was passed in 1971. It is further contended that though the father of respondents initiated HRC proceedings, however his petition was dismissed by the Hon'ble Apex Court in 8 the year 1994. Therefore, the present execution petition which is filed beyond twelve years is not maintainable. Even otherwise, the present petitioner has contended that all the legal representatives of original judgment- debtor are not brought on record. More particularly, present petitioners 4 to 7 and 10 to 13. The second strong objection that is raised by the counsel for petitioners is that in view of repelling of the old Act, the decree has become unenforceable. On these set of grounds, he would submit to this Court that the order under challenge is liable to be set aside.
4. Per contra, learned counsel appearing for respondents/decree-holder would submit to this Court that in terms of direction issued by the Court in HRC No.5/1971, the respondent/decree-holder has succeeded in securing possession only in the year 2012. Therefore, the execution petition filed in the year 2013 is very much maintainable and therefore, the contentions canvassed by 9 the petitioners cannot be acceded to. Insofar as the contention of present petitioners that the proceedings stand abated in view of repelling of the old Act, he would submit to this Court that the said issue is no more res- integra and same has is put to rest by the Hon'ble Apex Court in the case of M. Subbarao and sons v. Yashodhamma and others1. Further, he has placed reliance on the decision rendered by Division Bench of this Court in the case of Patric John and others v. Somashekhar2. Placing reliance on these two judgments, he would submit to this Court that admittedly eviction decree was passed in the year 1971 and therefore, if the decree was passed under the old Act and same has attained finality, the new Act has no application to the present case on hand.
5. Heard the learned counsel for the petitioners and the learned counsel appearing for the respondents. 1 (2002) 7 SCC 553 2 2010 (2) AIR KANT HCR 367 10 Though respondents/decree-holders succeeded in securing eviction decree way back in 1971, however, the HRC Court while allowing the HRC 5/1971 imposed a rider that the father of the respondents is entitled to take possession of the subject matter of present petition premises only after securing possession of southern portion, which was found to be in possession of another tenant. However, the HRC Court directed to secure possession within six months. Feeling aggrieved by this condition, the father of respondents/decree-holder preferred an appeal and in the said appeal, the said condition was relaxed. After having succeeded in getting the condition relaxed, the father of respondents/decree- holder initiated eviction proceedings against the tenant of southern portion in HRC No.8/1972, which was taken up to Apex Court and the Apex Court held that the provisions of Rent Act are not applicable. It is in this background, the father of respondents/decree-holders filed a suit in 11 O.S.No.2/2004 seeking possession from the legal representatives of original tenant. Said suit was decreed and the decree came to be executed against the legal representatives of original tenants. This fact is not in dispute. If possession of southern portion was secured in the year 2012, the present execution petition filed in the year 2013 is not barred by limitation and therefore, reasons assigned by the Court in rejecting HRC No.5/1971 does not suffer from any material irregularity.
6. The second contention raised by the present petitioners before this Court that the decree has become un-executable on account of repelling of the old Act also cannot be acceded to. The said issue is no more res- integra and same is put to rest in the case of M. Subbarao (supra). The Apex Court was of the view that if eviction decree passed under the old Act and the decree has become final in terms of Section 70(3) coupled with section 6 of the General Clauses Act, the decree passed 12 under the old Act would be saved and therefore, it is very much executable. In that view of the matter, the second contention is also not acceptable.
7. The third contention raised by the petitioners is that the other legal representatives of original judgment debtor i.e. present petitioners 4 to 7 and 10 to 13 are not party and therefore execution petition is not maintainable. I find some force in the submission made by the learned counsel, but on that count only the execution petition cannot be dismissed. However, respondent/decree-holder has to make endeavor to see that all the legal representatives of original decree-holder are brought on record before he proceeds to execute the decree. With this observation, the civil revision petition is dismissed.
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8. In view of disposal of the petition, pending interlocutory applications, if any, do not survive for consideration and are dismissed accordingly.
SD/-
JUDGE YAN