K.S. Gurushankar vs Sri S.K. Manikyam Charitable Trust

Aravind Kumar, J.—Heard Sri K.R. Ashok Kumar, learned Counsel appearing for revision petitioner/objector and Sri B. Papegowda, learned Counsel appearing for respondent No. 1/decree holder.

It is contention of Sri K.R. Ashok Kumar, learned Counsel appearing for revision petitioner/objector, that executing court ought to have extended an opportunity to objector/applicant by permitting him to tender oral evidence to establish the fact that he was a tenant of premises in question and he was not claiming any right through Judgment debtor and was having an independent right and by virtue of said right, he was in possession and enjoyment of premises in question. He submits that non-consideration of rent receipts (three numbers) produced before executing court by the objector along with application in its proper perspective by executing court has resulted in great prejudice to revision petitioner, since without considering said issue as to, whether objector should be granted an opportunity or not, summarily application filed by objector under Order 21 Rules 97 to 99 of Civil Procedure Code came to be dismissed. He would also submit that, in the absence of lease agreement (written lease), there is no prohibition for agreement in oral lease with the land lord and in the instant case, objector had entered into a oral lease with the land lady Smt. N.R. Shallamma and had paid rents and said receipts (three numbers) issued by her which came to be produced were not considered by the executing court at all. He would elaborate his submissions by contending that even findings recorded by the executing court to the effect that objector had been examined as a witness namely as DW-2 in SC No. 2319/2011 and as such he was very much aware of those proceedings initiated against defendant, but did not get himself impleaded in the said proceedings, would not be a ground to prevent the objector from filing the application in question to object to a decree being executed against him by virtue of an order under Order 21 Rules 97 to 99 of Civil Procedure Code. He would also contend that prima-facie material produced by the objector would demonstrate that he has an independent right over the property in question and as such objector ought to have been permitted to tender oral evidence and in support of the same, he should have been permitted to tender documentary evidence also. Non consideration of these aspects by the executing court has resulted in an erroneous order being passed. He would also submit that, no reasons have been assigned by the executing court to reject the application and reasons to be assigned in an order would be the hallmark for any decision and as such he prays for allowing revision petition by setting aside the order. In support of his submissions, he has relied upon following rulings:

i) Mr. David Paul Vs. Karunakar M. Shetty and Another,

ii) Maya Devi (dead) through Lrs. Vs. Smt. Raj Kumari Batra (dead) through Lrs. and Others,

iii) Vidhyadhar Vs. Manikrao and Another,

iv) State of Rajasthan Vs. Sohan Lal and Others,

v) Sri Munishamanna and Sri Ranganna Vs. Smt. Dhanalakshmi and Others

Per contra, Sri Papegowda, learned Counsel appearing for respondent No. 1/decree holder would support the order passed by executing court. He would contend that before filing of suit SC No. 2319/2011 a legal notice dated 29.01.2005 marked as Ex. P16 came to be issued undisputedly. Said notice was issued by plaintiff to defendant (who is none other than brother of objector) and he having received the said notice Ex. P16, did not contend that he is not the tenant of the suit schedule property and even otherwise, present objector had tendered evidence as a witness in SC No. 2319/2011 and nothing prevented him either to get impleaded himself in the said proceedings or challenge said Judgment and decree passed before appropriate forum. He would contend that only after decree of ejectment came to be passed as affirmed by this Court in CRP No. 195/2012, Judgment debtor has set up objector who is none other than his brother to stake claim in respect of the premises in question, to which he does not have any independent title or right over premises in question. Hence, he prays for dismissal of the revision petition.

Having heard the learned Advocates appearing for parties and on perusal of order passed by executing court, it would indicate that executing court has taken note of fact that objector is none other than brother of Judgment debtor and all the family members are in possession and enjoyment of different portions of premises in the building in question. In respect of plaint schedule premises, ejectment suit came to be filed by the plaintiff in SC No. 2319/2011, which was preceded by issuance of legal notice to defendant. Though said legal notice was received by the defendant, he did not replied to the same. In fact present objector was examined in said suit as DW-2 and he was very much aware of the proceedings. It is also found by the executing court that rent receipts produced by objector in SC No. 2319/2011 did not indicate that objector is a tenant of premises in question. Except the alleged rent receipts (three numbers), no other documentary evidence was tendered by the objector. Hence, executing court has rejected the application filed under Order 21 Rules 97 to 99 of Civil Procedure Code. There cannot be any dispute with regard to proposition of law that an objector claiming an independent right in respect of property which is put into execution has right to object to the decree at the time of such decree put into execution.

In instant case, respondent No. 1 herein had filed suit for ejectment in SC No. 2319/2011 against Sri K.S. Hari Murali Krishna and in the said suit, present objector was examined as D.W. 2. It is no doubt true that, in the said suit as a witness he has asserted that he is in possession of suit schedule premises. After having asserted so, he did not raise his little finger and even after decree of ejectment came to be passed, he kept quiet and it is defendant in the suit SC No. 2319/2011, who challenged the same before this Court in CRP No. 195/2012 and said revision petition also came to be dismissed by order dated 27.06.2012. It is thereafter, decree holder in order to enjoy fruit of the decree filed Execution Petition No. 327/2014. At that point of time, objector appeared and filed an application under Order 21 Rules 97 to 99 to contend inter alia that he is in possession of plaint schedule premises by virtue of an independent right. In order to establish that he is in possession and enjoyment of property, he has made an attempt in this regard and has produced three rent receipts which were also produced by him in SC No. 2319/2011, which were marked as Exs. D1 to D6. As rightly held by executing court, said rent receipts do not indicate even remotely that it pertains to plaint schedule premises and it lacks material particulars. If it was the case of objector that it was the only premises which was in his occupation and no other premises was in his occupation, there would have been semblance of truth in what he had contented. But it was not so, inasmuch as this objector who was examined as DW-2 in SC No. 2319/2011 (OS No. 2432/2006) has admitted in the cross-examination dated 18.10.2010 as follows:

"I have not produced tax paid receipts. It is true to suggest that I am in occupation of one premises in ground floor",

Plaint schedule premises or premises which was subject matter in SC No. 2319/2011, is undisputedly located at mezzanine floor which would indicate that objector is in possession of one more premises in the same building. It is also not in dispute that three brothers namely sons of late Satyanarayana Shetty are in occupation at different portions of building in question, where plaint schedule premises is also situated. As such it cannot be gainsaid by the objector that premises in question alone has been in his occupation and decree holder is attempting to execute a decree obtained against a third party.

Yet another fact which requires to be noticed by this Court is, defendant in SC No. 2319/2011 who was examined as D.W. 1 has stated in his examination-in-chief that for break-in-period in a year premises in question had been delivered to him and later on he delivered back to his brother Sri Guru Shankar namely the objector. His admission in examination-in-chief, reads to following effect:

"I further submit that, I was using the suit schedule property in a break-in-period in a year during the season of festival and school season to store the goods and at the time of filing the written statement, I was using the suit schedule property and the same was subsequently delivered back to my brother Guru Shankar and thus the said Guru Shankar is in actual, physical possession of the said shop as a lawful tenant".

(emphasis supplied by me)

It would emerge from this admission that defendant himself has admitted that he was in possession of premises in question and question which remained unanswered is, whether there was permission granted by decree holder at any point of time to part with possession of suit schedule property in favour of objector or by objector to D.W. 1. It is also to be noticed that D.W. 2 (Objector) herein has not stated in his evidence that he had ever permitted his brother Sri Hari Murali Krishna (defendant in S.C. No. 2319/2011) to occupy the premises in question. Even otherwise, defendant in SC No. 2319/2011 namely, brother of objector being aggrieved by judgment and decree passed against him, pursued his grievance in CRP No. 195/2012 and suffered an order of dismissal dated 27.06.2012. Immediately thereafter, objector did not pursue his grievance. Hence, contention of the objector that he had permitted his brother Sri Hari Murali Krishna to occupy the petition schedule premises is a story concocted by the objector in connivance with the judgment debtor and as such, said plea cannot be accepted.

Clear admission of D.W. 1 in SC No. 2319/2011 (i.e., judgment debtor) would also create a cloud over claim made by objector that he is in possession of petition schedule property or in other words, admission of objector''s brother would suggest claim made by objector is too remote and would not fall under Order 21 Rule 97 of Civil Procedure Code calling for adjudication.

Contentions have also been raised by Mr. Ashok Kumar, learned Counsel appearing for objector/petitioner that order passed by Executing Court does not contain reasons. Buttering his arguments in that regard, he has relied upon a Judgment in a case of Maya Devi (dead) through Lrs. Vs. Smt. Raj Kumari Batra (dead) through Lrs. and Others, , where under, it has been held to the following effect:

"15. What then are the safeguards against an arbitrary exercise of power? The first and the most effective check against any such exercise is the well recognized legal principle that orders can be made only after due and proper application of mind. Application of mind brings reasonableness not only to the exercise of power but to the ultimate conclusion also. Application of mind in turn is best demonstrated by disclosure of the mind. And disclosure is best demonstrated by recording reasons in support of the order or conclusion".

An order passed under Order 21 Rules 97 to 99 of Code of Civil Procedure par-taxes the charter of a deemed decree and becomes an appealable order, as could be noticed from Section 47 of Code of Civil Procedure. However, in the instant case, power under Order 21 Rules 97 to 99 of Code of Civil Procedure having been exercised by Small Causes Court, such order would be amenable before Revisional Court under Section 18 of the Karnataka Small Causes Courts Act, as such, there cannot be any dispute to the proposition that order passed by the executing court should contain reasons. In fact Order 41 Rule 31(3) of Code of Civil Procedure would clearly indicate that judgment should contain reasons for decisions. In instant case, executing court has assigned specific reasons at paragraph Nos. 16 and 17 to reject the claim of objector and said decision does not suffer from any infirmity and it cannot be construed that said decision arrived at by the executing court is not based on proper reasoning. In that view of matter, judgment relied upon by Sri Ashok Kumar, learned Counsel appearing for petitioner will have to be held as inapplicable to facts on hand.

In light of discussion made herein above, I proceed to pass the following:

ORDER

i) Revision petition is hereby dismissed with costs which is quantified at Rs. 5,000/- payable by revision petitioner to decree holder within four weeks from today, failing which the decree holder would be entitled to recover the same as if it were a decree passed in his favour.

ii) Order passed by executing court in EP No. 327/2014 dated 07.03.2014 is hereby confirmed.