Jolly Abhilash alias Jolly Sebastian v. M.C.George

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944 O.P.(RC) NO. 68 OF 2022** **AGAINST THE ORDER DATED 24.02.2022 IN RCRP NO.4 OF 2021 OF THE RENT CONTROL REVISIONAL AUTHORITY (ADDITIONAL DISTRICT JUDGE-IV), KOTTAYAM** **PETITIONER/REVISION PETITIONER:** **JOLLY ABHILASH ALIAS JOLLY SEBASTIAN** **AGED 35 YEARS, D/O. P.J.SEBASTIAN, RESIDING AT PULLICKATHOPPIL HOUSE, PONGANPARA, PUTHUPPALLY P.O., KOTTAYAM, KERALA, PIN - 686 002.** **BY ADV LUKE J CHIRAYIL** ## **RESPONDENT/RESPONDENT:** **M.C.GEORGE AGED 68 YEARS, S/O. JOSEPH CHACKO, MULLANKUZHIYIL HOUSE, AYMANAM P.O., KOTTAYAM, KERALA, PIN - 686 005.** **BY ADV V.P.MOHAMMED NIYAZ** **THIS OP (RENT CONTROL) HAVING COME UP FOR FINAL HEARING ON 05.07.2022, THE COURT ON 18.07.2022 DELIVERED THE FOLLOWING:** 2 O.P.(RC) No.68 OF 2022 ## **JUDGMENT** ## Ajithkumar, J. This original petition is filed under Article 227 of the Constitution of India by the petitioner challenging order of the Rent Control Revisional Authority (Additional District JudgeIV), Kottayam dated 24.02.2022 in RCRP No.4 of 2021. The Revisional Authority, as per the said order, turned down the challenge to the common order of Principal Munsiff (Execution Court), Kottayam dismissed E.A.No.4 of 2021. 2. E.A.No.4 of 2021 was filed by the petitioner invoking the provisions of Section 47 and Rules 97 and 98 of order XXI of Code of Civil Procedure, 1908 in EP No.166 of 2019 in R.C.P.No.13 of 2018. The said execution petition was filed by the respondent who obtained an order of eviction under section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act against one Joby Sebastian. Ext.P1 is the order of eviction. In the execution petition, steps for delivery of the petition schedule building was taken out. The Amin deputed by the Execution Court for effecting delivery tried to 3 O.P.(RC) No.68 OF 2022 execute the order. At that time, there arose obstruction. It was thereafter the petitioner claiming independent right over the petition schedule building filed E.A.No.4 of 2021. 3. Contention of the petitioner is that the respondent by playing fraud upon the petitioner obtained the sale deed in respect of the petition schedule building in his favour. The petitioner was a domestic aid at the residence of the respondent. When she with the help of her mother who was working in Kuwait was taking steps for the purchase of petition schedule building, the respondent offered help and financial assistance to materialise the transaction. But by deceit and misrepresentation, the document was taken in his name. Thus the petitioner claimed that it is she who is the owner of the petition schedule building and entitled to continue in possession which she obtained following the execution of the sale deed. Thus, she maintained that the order of eviction was not executable and she was not liable to be dispossessed. 4. The respondent filed an objection to E.A.No.4 of 4 O.P.(RC) No.68 OF 2022 2021 in the form of a petition, a copy of which is Ext.P9. The allegation that making use of the fund provided by the petitioner and also her mother, he purchased the petition schedule building was totally denied. Regarding the money transferred from the account of the mother of the petitioner, he had offered a few explanations. It was further contended that the brother of the petitioner is the tenant and in order to help him and in collusion with him, the petitioner has filed E.A.No.4 of 2021. Thus he contended that the petitioner did not have any right, interest or possession over the petition schedule building. 5. On 18.03.2022, an interim order to defer the proceedings in E.P No.66 of 2019 before the Execution Court till 22.03.2022 was granted. That order was extended from time to time. Pursuant to notice, the respondent entered appearance through his learned counsel. 6. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 5 O.P.(RC) No.68 OF 2022 7. E.A.No.4 of 2021 was dismissed by the execution court as not maintainable. The petition was filed invoking the provisions under Section 47 and also Rules 97 and 98 of Order XXI of the Code. The execution court holding that the petitioner is not a party to the rent control proceedings held that Section 47 does not attract in the case. The appellate authority went on a different tangent but, upheld the finding that Section 47 has no application in the case. 8. The averments in E.A.No.4 of 2021 constitute the claim that the petitioner is the owner of the petition schedule building entitling to continue in possession and therefore he is not liable to be dispossessed on the strength of Ext.P1 order. Therefore the petition essentially is one claiming right and title to the building in respect of which the execution is taken out. Such a petition can be treated as one filed under Rule 97 of Order XXI of the Code alone. Therefore, the findings of the court below that Section 47 of the Code is not attracted to the case cannot be said incorrect. 9. Both the courts further found that the petition 6 O.P.(RC) No.68 OF 2022 could not be considered under Rule 97 or 98 of Order XXI of the Code. The Execution Court took the view that what is sought to be executed is an order of eviction passed in a Rent Control proceedings and Rule 97 of Order XXI of the Code of Civil Procedure has no application to such a proceedings. It was held that if delivery is sought as per a decree in a suit for possession or a sale in execution of a decree alone, an application under Rule 97 of Order XXI of the Code can be entertained. By taking such a view, the Execution Court dismissed the petition at the threshold holding that it was not maintainable. 10. The revisional authority did not consider the said question in detail. Instead, by observing that despite giving several opportunities, the petitioner failed to adduce evidence, the revisional authority concluded that there was no infirmity in the order of the execution court dismissing E.A.No.4 of 2021. 11. The learned counsel appearing for the petitioner would contend that there is sufficient evidence to establish that the petitioner was the real purchaser of the petition 7 O.P.(RC) No.68 OF 2022 schedule building and the respondent by deceit and misrepresentation, took the title deed in his favour. The title deed is therefore a void one and when the petitioner is denied an opportunity to prove that fact, there occurred travesty of justice. In his view, the execution court, at any rate, should not have dismissed the petition as not maintainable instead, should have allowed the petitioner to adduce evidence and decided the matter on merits. The learned counsel relied on the decision in **Star Fish Exports and another v. V.Mahamood [2017 (1) KHC 809]** to contend that the power of execution of an order of eviction in a rent control proceeding is conferred upon a civil court and therefore the execution court should have decided E.A.No.4 of 2021 on merits. 12. The learned counsel appearing for the respondent, on the other hand, would contend that the petitioner without having any right, preferred E.A.No.4 of 2021. Her brother is the tenant. The petitioner started residing along with her brother only to obstruct the delivery proceedings. Accordingly, 8 O.P.(RC) No.68 OF 2022 the learned counsel contended that the courts below rightly had dismissed the E.A.No.4 of 2021. 13. In **Star Fish Exports** (supra), the question was whether an order passed by the execution court under Section 47 of the Code in a proceedings for execution under Section 14 of the Act is subject to revision under the proviso to that section. In that context, this court held that Section 14 of the Act conferred jurisdiction to Munsiff to execute orders of eviction as if it were a decree. If the Munsiff decides in such a proceedings, an issue invoking the provisions of Section 47 of the Act, the proceedings does not come within the provisions of Order XXI of the Code for it to be a revisable order under the proviso to Section 14. Questions like executability of the order, etc. are decided under Section 47 of the Code and such orders are liable to be questioned in a revision under Section 115 of the Code before the High Court and not under the proviso to Section 14 of the Act. 14. In **Kuruvilla v. Kesavan [1980 KLT 364]** , this Court held that execution contemplated by Section 14 of the 9 O.P.(RC) No.68 OF 2022 Act is the execution of the orders against the parties thereto. It does not contemplate the investigation of obstructions offered by third parties or the orders in such proceedings. Therefore, orders passed on obstructions and claims do not fall within the ambit of orders “passed in execution under the Section”. 15. This view was reiterated in **Dr.Yogiraj v. Ravinranath [1983 KLT 499]** and held that an application under Section Rule 97 of Order XXI of the Code is maintainable in execution proceedings taken out under Section 14 of the Act. ## 16. In **Ravi Varma Raja v. Munsiffs Court (Rent Control Execution Court), Quilandy and others [2009** **(4) KLT 870]** this Court further explained that if a petitioner who is not a party to the order of eviction, which is sought to be executed, but a third party files a claim petition/ obstruction petition and it is dismissed, his remedy is an appeal under Rule 103 of Order XXI of the Code and not a revision under Section 14 of Act. 10 O.P.(RC) No.68 OF 2022 17. In the light of the principle of law laid down in the aforesaid decisions, the question is no more res integra. An application under Rule 97 of Order XXI of the Code is maintainable in an execution proceedings under Section 14 of the Act. Therefore the findings of the courts below that E.A.No.4 of 2021 was not liable to be entertained is incorrect. 18. In the said circumstances, we hold that E.A.No.4 of 2021 is maintainable in law. The execution court ought to have decided that petition on its merits. The rival contentions regarding right, title or interest in the petition schedule building is a matter to be decided on the basis of the evidence. We make it clear that we did not express any opinion about the merits of the contentions of the parties in E.A.No.4 of 2021 and all their contentions, both legal and factual are left open. 19. Accordingly, we allow this original petition by setting aside the order dated 24.02.2022 of the revisional authority in RCRP No.4 of 2021 and the order dated 16.09.2021 of the Execution Court in E.A.No.4 of 2021 and 11 O.P.(RC) No.68 OF 2022 the connected E.As. in E.P.No.166 of 2019 in R.C.P.No.13 of 2018. The matter is remitted to the Execution Court. The Execution Court will give an opportunity to both sides to adduce evidence and decide E.A.No.4 of 2021 and the connected EAs. in accordance with law. ## **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** pv/dkr 12 O.P.(RC) No.68 OF 2022 ## **APPENDIX OF OP (RC) 68/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE ORDER DATED 23.07.2017 IN R.C.P. NO.13 OF 2018 ON THE FILES OF THE PRINCIPAL RENT CONTROL COURT, KOTTAYAM.** **Exhibit P2 TRUE TYPED COMPUTER COPY OF THE REPORT OF THE AMIN INTIMATING THE DETAILS OF THE INCIDENTS THAT OCCURRED ON 06.02.2021.** - **Exhibit P3 THE TRUE TYPED COMPUTER COPY OF THE REPORT OF THE AMIN INTIMATING THE DETAILS OF THE INCIDENTS THAT OCCURRED ON 09.02.2021.** - **Exhibit P4 TRUE TYPED COMPUTER COPY OF THE REPORT OF THE AMIN INTIMATING THE DETAILS OF THE INCIDENTS THAT OCCURRED ON 19.02.2021.** **Exhibit P5 TRUE TYPED COMPUTER COPY OF THE REPORT OF THE AMIN INTIMATING THE DETAILS OF THE INCIDENTS THAT OCCURRED ON 26.02.2021.** **Exhibit P6 TRUE COPY OF THE PETITION DATED 01.03.2021, NUMBERED AS E.A.NO.4 OF 2021 IN E.P.NO.166 OF 2019 IN R.C.P. NO.13 OF 2018, ON THE FILES OF THE PRINCIPAL RENT CONTROL COURT, KOTTAYAM.** **Exhibit P7 TRUE COPY OF THE PETITION DATED 01.03.2021, NUMBERED AS E.A.NO.5 OF 2021 IN E.P.NO.166 OF 2019 IN R.C.P. NO.13 OF 2018, ON THE FILES OF THE PRINCIPAL RENT CONTROL COURT, KOTTAYAM.** 13 O.P.(RC) No.68 OF 2022 ## **Exhibit P8** **TRUE COPY OF THE NON-SIGNED AGREEMENT DATED 08.03.2017 ENTERED ON 08.03.2017 BETWEEN SAKHI SEBASTIAN AND K.R.MAHESH.** **Exhibit P9** - **TRUE COPY OF THE OBJECTION/PETITION DATED 22.03.2021, NUMBERED AS E.A.NO.7 OF 2021 IN E.P.NO.166 OF 2019 IN R.C.P. NO.13 OF 2018, ON THE FILES OF THE PRINCIPAL RENT CONTROL COURT, KOTTAYAM.** - **Exhibit P10 TRUE COPY OF THE PETITION DATED 22.03.2021, NUMBERED AS E.A.NO.6 OF 2021 IN E.P.NO.166 OF 2019 IN R.C.P. NO.13 OF 2018, ON THE FILES OF THE PRINCIPAL RENT CONTROL COURT, KOTTAYAM.** - **Exhibit P11 TRUE COPY OF THE E-COURTS ENTRY DATED 16.09.2021 IN E.P.NO.166 OF 2019, ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, KOTTAYAM.** - **Exhibit P12 TRUE COPY OF THE PETITION NUMBERED AS R.C.R.P. NO.4 OF 2021, ON THE FILES OF THE RENT CONTROL APPELLATE AUTHORITY, KOTTAYAM.** - **Exhibit P13 TRUE COPY OF THE ORDER DATED 24.02.2022, IN R.C.R.P. NO.4 OF 2021, ON THE FILES OF THE ADDITIONAL RENT CONTROL APPELLATE AUTHORITY - IV, KOTTAYAM.** - **Exhibit P14 TRUE COPY OF THE ORDER DATED 07.10.2021 IN O.P.(RC) NO.92 OF 2021 ON THE FILES OF THE HIGH COURT OF KERALA.** - **Exhibit P15 TRUE COPY OF THE E-COURTS ENTRY DATED 02.02.2022 IN E.P.NO.166 OF 2019 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, KOTTAYAM.**