K.S. Rajagopal v. P.G. Prasanth and A. Anilkumar

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945 ``` ## **`OP(C) NO. 257 OF 2013`** ``` IN O.S.NO.530/2004 OF I ADDITIONAL MUNSIFF COURT, ``` ## **`THIRUVANANTHAPURAM`** ## **`PETITIONER:`** ``` K.S.RAJAGOPAL, THIRUVATHIRA, SREEKANTESWARAM, VANCHIYOOR, THIRUVANANTHAPURAM. BY ADVS. SRI.G.P.SHINOD SRI.GOVIND PADMANAABHAN SRI.MANU V. SRI.RAM MOHAN.G. ``` ## **`RESPONDENTS:`** ``` 1P.G.PRASANTH T.C 74/281, ATHAM, PALKULANGARA, PETTAH, THIRUVANANTHAPURAM-695024. 2A.ANILKUMAR CHARUVILA VEEDU, TC 21/858, KARAMANA, THIRUVANANTHAPURAM-695002. BY ADV SRI.M.H.HANIL KUMAR ``` ``` THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11.11.2022, THE COURT ON 20.12.2023 DELIVERED THE FOLLOWING: ``` O.P(C) No.257 of 2013 -:2:- ## **MARY JOSEPH, J.** - - - - - - - - - - - - - - - - - - - - - - - O.P(C) No.257 of 2013 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of December, 2023 ## **JUDGMENT** This Original Petition is filed by the petitioner under Article 227 of the Constitution of India. Petitioner is none other than the decree holder and respondents are the judgment debtors in E.P.No.88/2011 in O.S.No.530/2004 on the files of the I Additional Munsiff Court, Thiruvananthapuram (for short ‘the court below’). 2. O.S.No.530/2004 was filed by the respondents for a decree of permanent prohibitory injunction restraining the petitioner (defendant in the suit) from dispossessing the respondents from the plaint schedule shop room. A counter claim was filed by the petitioner seeking recovery of possession of the plaint schedule shop room contending O.P(C) No.257 of 2013 -:3:- interalia that the petitioner was forcibly dispossessed from the plaint schedule shop room on 25.03.2004. 3. The court below dismissed the Original Suit and decreed the counter claim finding that the petitioner was forcibly dispossessed from the shop room on 25.03.2004. True copy of the judgment dated 14.10.2005 in O.S.No.530/2004 of I Additional Musiff Court, Thiruvananthapuram is Ext.P1. 4. To execute the decree, E.P.No.88/2011 was filed in the Original Suit, true copy of which is Ext.P2. Objection was filed by respondents in Ext.P2 contending interalia that the decree is inexecutable since pending the suit, a Rent Control Petition was filed as R.C.P.No.59/2004 by one Nagammal, the landlord of the plaint schedule shop room against the petitioner and his brother and an order of eviction was passed in the suit on 06.12.2006 in favour of the landlord, that thereupon the landlord filed Execution O.P(C) No.257 of 2013 -:4:- Petition as E.P.No.328/2007 seeking execution of the order and obtained vacant possession from the petitioner on 03.06.2010, that in view of that, Ext.P1 judgment has become infructuous, that subsequently the 2[nd] respondent has purchased the plaint schedule shop room as per sale deed No.1834/2010 from the original landlord and that since then the 2[nd] respondent has become the absolute owner of the plaint schedule shop room. Therefore, it was contended that the petitioner has no locus standi to file the Execution Petition. True copy of the objection filed by the respondents in E.P.No.88/2011 in O.S.No.530/2004 on the files of 1[st] Additional Munsiff Court, Thiruvananthapuram is produced alongwith as Ext.P3. 5. The decree sought to be executed is one passed in terms of Section 6 of the Specific Relief Act, 1963 reckoning only the prior possession of the plaint schedule shop room. The title of the property is immaterial while executing Ext.P1 O.P(C) No.257 of 2013 -:5:- judgment. Since the petitioner was forcibly dispossessed from the plaint schedule shop room on 03.06.2010, the delivery of property sought from him in E.P.No.328/2007 in RCP No.59/2004 is only a paper delivery. The entire proceedings in RCP No.59/2004 was contended as malafide and orders there, were alleged as obtained by practising fraud and collusion. 6. The subsequent events occurred in respect of the plaint schedule property cannot be gone into by the executing court. The alleged subsequent event, it was contended, will not in any manner render Ext.P1 infructuous and inexecutable. According to the learned counsel, without adverting to those aspects, appreciating the evidence and understanding the nature of Ext.P1 decree, Ext.P3 was dismissed by the executing court on 26.07.2012, true copy of which order is produced alongwith and marked as Ext.P4. O.P(C) No.257 of 2013 -:6:- 7. It was contended by Sri.Shinod G.P, the learned counsel that Ext.P4 order is manifestly erroneous since it totally restrains the petitioner from realising the fruits of the decree. According to him, the order has resulted in miscarriage of justice and prejudice to the petitioner. According to him, seeking interference and reversal of Ext.P4 that the Original Petition was filed invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 8. On a perusal of Ext.P1 it is convinced that the petitioner was allowed to recover possession of the property scheduled in the counter claim filed by him from the plaintiffs under Section 6 of the Specific Relief Act. The plaintiffs were directed to surrender vacant possession of the shop room forthwith to the defendant. 9. The court has found in Ext.P1 that the petitioner was forcibly dispossessed from the plaint schedule shop O.P(C) No.257 of 2013 -:7:- room on 25.03.2004 and therefore the counter claim filed by him in O.S.No.530/2004 was allowed directing plaintiffs to surrender vacant possession of the plaint schedule shop room in favour of the defendant. Later to that, RCP No.59/2004 was filed by the landlord against the brother of the defendant, K.S.Gopakumar and obtained an order of eviction on 06.12.2006. E.P.No.328/2007 was filed by the landlord and consequently the decree holder in Ext.P1 was evicted from the petition schedule shop room on 03.06.2010. It is established from the delivery kacheet marked in evidence as Ext.B2 that the decree holder of Ext.P1 was evicted from the plaint schedule shop room. 10. The 2[nd] judgment debtor purchased the plaint schedule shop room from Smt.Nagammal by virtue of Sale deed No.1834/2010 registered at SRO Chalai, Thiruvananthapuram. It is produced alongwith as Ext.B3. O.P(C) No.257 of 2013 -:8:- 11. Therefore, the contention of the decree holder in Ext.P1 was that he was not evicted from the plaint schedule shop room and is still holding possession of it as it’s tenant. 12. The learned counsel for the petitioner relied on **Angamali Chitty Funds (P) Ltd. v. Sathish Chandran** **[1990 KHC 100)** to substantiate the contention taken by him in the Original Petition. It was a case where, the executing court held the decree sought to be executed as null and void as it was passed without due notice to defendants 2 to 4. The relevant portion of the decree is extracted hereunder: “The suit coming on the 4[th] day of December, 1987 for final disposal before me in the presence of the advocates for the plaintiff named above and the defendants 2 to 5 having remained absent and were placed ex parte and the first defendant also called out absent and placed ex parte and after perusing the affidavit filed by the plaintiff this court doth hereby order and decree as follows:……”. O.P(C) No.257 of 2013 -:9:- 13. It was contended by the respondents that the decree is null and void as it was passed without due notice to the defendants 2 to 4. He thus sought for a declaration to that effect. The learned counsel for the decree holder submitted on the contrary that the order of the court below declaring that the decree is incapable of execution being void is liable to be set aside. 14. A Single Bench of this Court while considering, whether the executing court has power to declare a decree null and void, set aside the order and directed the court below to take the Execution Petition on to it’s file and to dispose of the same in accordance with law. 15. The position of law in that regard is settled in **Hiralal v. Kalinath (AIR 1962 SC 199)** and **V.D.Modi v. Rajabhai Abdul Rehman and others (AIR 1970 SC 1475)** . In the above cases that Apex Court held affirmatively that the executing court has the power to O.P(C) No.257 of 2013 -:10:- declare a decree as null and void. Therefore, it is no longer a moot question for consideration. The real question to be considered is what are the circumstances under which an executing court can declare a decree null and void. 16. In this connection it is to be remembered that an executing court while executing a decree cannot go beyond the decree. It shall execute the decree as it stands. The executing court cannot also entertain the argument that the decree sought to be executed was incorrect in law or on facts. That means a decree even assuming that it is incorrect in law or on facts is executable until it is set aside, by a proper proceeding in appeal, revision or other proceedings provided for under Code of the Civil Procedure, 1908. 17. The observations made by the Apex Court in **V.D Modi** supra are extracted hereunder since it gives an O.P(C) No.257 of 2013 -:11:- ## indication of the circumstances that should be taken into account while declaring a decree null and void: "When a decree which is nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of decree, or against a ruling prince without a certificate, is sought to be executed an objection on that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an executing proceeding if the objection appears on the face of the record; where the Objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as the validity of the decree even on the ground of absence of jurisdiction…....where it is necessary to investigate facts in order to determine whether the Court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceedings". 18. In the case on hand a decree was passed as Ext.P1 in the counter claim filed by the defendants in O.S.No.530/2004. Recovery of possession of the properties O.P(C) No.257 of 2013 -:12:- scheduled as ‘A’ in the counter claim was passed in favour of defendant and the plaintiffs were directed to surrender vacant possession of the shop room forthwith to the defendant. The Execution Petition was filed seeking delivery of property. A.S.No.21/2006 was filed by the plaintiffs against the judgment and decree which later was withdrawn on 01.07.2010. 19. The case of the decree holder in the Execution Petition was that so far the plaint schedule shop room was not surrendered in his favour by the judgment debtor. 20. In the objection filed, the judgment debtors raised a contention that the decree holder has already alienated the residence mentioned in the Execution Petition. According to the judgment debtors, the defendant claimed to be the owner of the plaint schedule shop room, entered into an agreement for sale with the judgment debtors/plaintiffs agreeing to sell the plaint schedule O.P(C) No.257 of 2013 -:13:- property for `5,75,000/- to them on 22.10.2003. `2,50,000/- was paid by the plaintiffs as advance sale consideration. The decree holder/defendant had handed over possession of the plaint schedule shop room to the judgment debtors/plaintiffs and from 01.11.2003 onwards the judgment debtors/plaintiffs are doing business there. While holding possession as above, the original landlord of the shop room filed RCP No.59/2004 against Sri.K.S. Gopakumar who is the brother of the defendant and obtained an order of eviction in her favour and against the decree holder/defendant. The landlord filed Execution Petition as E.P.No.328/2007 and executed the decree thereby the decree holder/defendant was evicted from the plaint schedule shop room on 03.06.2010. 21. It was contended by the judgment debtors that the judgment in O.S.No.530/2004 is infructuous and is not an executable one. It was contended further that the decree O.P(C) No.257 of 2013 -:14:- holder has no locus standi to file the present Execution Petition by claiming the status as on 14.10.2005 in view of the circumstances developed lateron. It was contended that the decree holder has filed the Execution Petition knowingly of the subsequent developments but suppressing those only to harass the judgment debtors/plaintiffs and to waste the valuable time of the court. Thus Execution Petition was sought to be dismissed. 22. The court held on the basis of the objection raised by the judgment debtors that the decree holder in view of his eviction from the petition schedule shop room has no right over the petition schedule property. It was held that the 2[nd] judgment debtor is the absolute owner of the property following purchase of the same after paying consideration and execution of Ext.B3 sale deed. Accordingly it was held that the decree is not executable due to subsequent events. O.P(C) No.257 of 2013 -:15:- 23. For holding so, the executing court is required to conduct an enquiry into the disputed facts that delivery of possession of the petition schedule shop room was effected or not. The executing court has also to conduct enquiry into various aspects especially when in the objection it was contended that the landlord has sought for eviction of the brother of the defendant to see whether the brother of the defendant and the defendant in whose favour Ext.P1 was passed are one and the same. An enquiry of the nature, the executing court is not empowered to conduct. The executing court is only bound to execute the decree as it stands. As observed by the Apex Court in **V.D Modi’s** case, a decree even assuming that it is incorrect in law or on facts is executable, until it is set aside in appeal, revision or other proceedings provided for under the Code of Civil Procedure. Viewed in that backdrop, this Court is justified in allowing the Original Petition and thereby to reverse Ext.P4 order. O.P(C) No.257 of 2013 -:16:- In the result, Original Petition is allowed. Ext.P4 order is set aside. Ext.P2 is restored to the files of I Additional Munsiff Court, Thiruvananthapuram for proceeding with execution of Ext.P1 decree, till it is set aside in appropriate proceedings by a superior court. Sd/- **MARY JOSEPH, JUDGE.** NAB O.P(C) No.257 of 2013 -:17:- ## **`APPENDIX OF OP(C)257/2013`** ``` PETITIONER’S EXHIBITS EXHIBIT P1A TRUE COPY OF THE JUDGMENT DATED 14.10.2005 IN O.S.NO.530 OF 2004 OF THE I ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM EXHIBIT P2A TRUE COPY OF THE E.P.NO.88 OF 2011 IN O.S.NO.530 OF 2004 FILED BEFORE THE I ADDIITONAL MUNSIFF COURT, THIRUVANANTHAPURAM EXHIBIT P3A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS IN E.P.NO.88 OF 2011 IN O.S.NO.530 OF 2004 FILED BEFORE THE I ADDITIONAL MUNISIFF COURT, THIRUVANANTHAPURAM EXHIBIT P4A TRUE COPY OF THE ORDER DATED 26.07.2012 IN E.P.NO.88 OF 2011 IN O.S.NO.530 OF 2004 OF THE I ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM RESPONDENT’S EXHIBITS: NIL ``` //TRUE COPY// P A TO JUDGE