T.P. Khalid vs K.P. Pathummakutty Umma and Another

K.K. Narendran, J.—Pathummakutty Umma let out her building to Kunhammad. According to her, Kunhammad sublet that building to Khalid and Usman without her consent. So, Pathummakkutty Umma lost no time in filing O. P. No. 160 of 1976 for eviction u/s 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act 2 of 1965, before the Rent Control Court, Palghat. Kunhammad contested while the sub-tenants did not contest. The Rent Control Court ordered eviction and granted one month''s time to put the landlord in possession of the building. Kunhammad was making arrangements for filing an appeal against the order for eviction passed on 15-7-1977. But Khalid and Usman surrendered possession of the building to Pathummakutty Umma on 8-8-1977. Usman filed E. A. No. 940 of 1977 and Khalid filed E. A. No. 941 of 1977, before the Principal Munsiff, Palghat praying that the surrender of the building to the landlord may be recorded. Kunhammad raised various objections. The learned Munsiff dismissed both the execution applications by a common order. The dismissal of E. A. No. 941 of 1977 is challenged in these Civil Revisions. C. R. P. No. 513 of 1978 was filed by the sub-tenant Khalid while C. R. P. No. 648 of 1978 was filed by the landlord Pathummakutty Umma.

Counsel on both sides raised a number of contentions. For disposing of these Civil Revisions I think I need only consider the question whether a revision from the impugned order lies to this Court or to the District Court, Palghat.

Section 14 of the Kerala Building (Lease and Rent Control) Act, 2 of 1965, for short the Act, reads:

"14. Execution of orders:-- Every order made u/s 11 or Section 12 or Section 13 or Section 19 or Section 33 and every order passed on appeal u/s 18 or on revision u/s 20 shall, after the expiry of the time allowed therein be executed by the Munsiff or if there are more than one Munsiff, by the Principal Munsiff having original jurisdiction over the area in which the building is situated as if it were a decree passed by him.

Provided that an order passed in execution under this section shall not be subject to an appeal but shall be subject to revision by the Court to which appeals ordinarily lie against the decision of the said Munsiff."

Order XXI Rule 2(1) of the Code of Civil Procedure, 1908 reads:

"2. Payment out of Court to decree-holder :-- (1) Where any money payable under a decree of any kind is paid out of Court or a decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.

(2) .............................."

Admittedly, in this case, an order for eviction was passed by the Rent Control Court u/s 11 of the Act. What Section 14 of the Act says is that after the expiry of the time allowed by the order the same can be executed by the Principal Munsiff having original jurisdiction over the area in which the building is situated as if it were a decree passed by him. Order XXI Rule 2(1) of the CPC empowers the Court, whose duty it is to execute the decree, to record payment out of court of money payable under a decree or adjustment, otherwise of a decree of any kind otherwise adjusted. The clear indication in the rule is that the pendency of an execution petition is not a condition precedent for the Court competent to execute the decree to record satisfaction or adjustment of the decree out of court. As the Principal Munsiff is to execute the order for eviction as if it were a decree, he as execution court can record adjustment out of Court of the order. The order will be one passed u/s 14 of the Act. The order is an order passed in execution. The powers to be exercised by the Munsiff under the section are only that of an execution Court. So, the proviso to Section 14 of the Act will take in such an order passed by the Munsiff. In that case, the revision lies to the District Court and not to the High Court. So, these revisions filed before this Court are not maintainable. In this view of the matter, it is not necessary to consider the contentions on the merits raised by the counsel on both sides.

Accordingly, the Civil Revision Petitions are dismissed. If the petitioners file revisions before the District Court, Palghat against the order impugned in these Civil Revisions with petitions to condone the delay there is no reason why the District Court should not entertain those Civil Revisions. Parties are directed to suffer their costs.