Kunjumol C. Immanuvel v. Shibu s/o Sreedharan

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932** **Ex.SA.No. 11 of 2010()** **---------------------AS.182/2008 of SUB COURT,NEYYATTINKARA EA.NO.734/2008 IN EP.NO.503/2004 IN RCP NO.2/2003 OF PRINCIPAL MUSIFF COURT, NEYYATTINKARA.** **....................** ## **APPELLANT/APPELLANT IN 1ST APPEAL/PETITIONER IN EA 734/06:** **----------------------------------------------------------------------------------------------------** **KUNJUMOL C.IMMANUVEL, D/O.LOORTHAMMAL, MULLAKKAL BHAVAN, RC STREET, NILAMEL,KADAVATTARAM DESOM, NEYYATTINKARA-695 121.** **BY ADV. SRI.V.SURESH** **RESPONDENT(S): RESPONDENT 1ST APPEAL/ COUNTER PETITIONER IN EA.734/06:** **-----------------------------------------------------------------** **SHIBU, S/O.SREEDHARAN, MEDAYIL VEEDU, ARUMANOOR DESOM,THIRUPURAM VILLAGE,NEYYATTINKARA, THIRUVANANTHAPURAM-695 525.** **BY ADV. SRI.G.S.REGHUNATH** **THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **P.BHAVADASAN, J.** ------------------------------------Ex. SA No.11 of 2010 ------------------------------------Dated 24th July 2010 Judgment The petitioner in EA No.734/06 in EP No.503 of 2004 in RCP No.2/2003, is the appellant before this Court. The parties and facts are hereinafter referred to as they are available before the Trial Court. 2. In RCP No.2/03, eviction was ordered against the tenant under Ss.11(2)(b) and 11(3) of the Kerala Building (Lease and Rent Control) Act (Act 2 of 1965). The eviction order was put in execution and it was posted for delivery. At that point of time, the appellant approached the Execution Court. She filed EA No.734/06 under Order XXI Rule 97 setting out that she has independent rights over the premises and that her rights are affected by the order now passed without hearing her. EX SA 11/10 2 3. The Execution Court adjudicated on the issue raised by the appellant herein and found it to be untenable and accordingly ordered delivery. The aggrieved petitioner before the Execution Court carried the matter in appeal as AS No.182/2008 before the Sub Court, Neyyattinkara. The said Court dismissed the appeal, holding that it is not maintainable. It is the said order that is assailed in this appeal. 4. The short question that arises for consideration in this appeal is whether the view taken by the lower Appellate Court that the appeal is not maintainable and the remedy of the petitioner is by way of revision, is sustainable in law. 5. The learned counsel for the appellant before this Court pointed out that the EA had been filed by the appellant under Order XXI Rule 97 CPC and it had to be necessarily adjudicated under Order XXI Rule 101. If that be so, the consequences mentioned under Order XXI Rule EX SA 11/10 3 103 followed. The order so passed, will have to be treated as if it is a decree and so, an appeal is maintainable. In support of the said proposition, the learned counsel for the appellant relied on the decision of this Court in _**Ravi Varma Raja v. Munsiff's Court**_ (2009(4) KLT 870). 6. The learned counsel for the respondent, on the other hand, pointed out that a petition under Order XXI Rule 97 is not maintainable. A petition under Order XXI Rule 97 is intended to be filed by the decree holder. It is also pointed out that a reading of the Judgment of the Execution Court will show that no independent right as such is set up by the claim petitioner and the grievance was that a fraudulent ex parte order has been passed against the tenant who is her son. It is contended that if that be the position, it is a matter between the parties to the proceedings itself and therefore, the view of the Appellate Court that an appeal is not maintainable, is correct. EX SA 11/10 4 7. As to whether the petition under Order XXI Rule 97 is maintainable or not and what are the rights that can be adjudicated in such a petition, are all matters which need not be adjudicated in this appeal. The lower Appellate Court has considered only the point as to whether the appeal was maintainable or not, as contended by the learned counsel for the appellant. 8. Strictly speaking, the petition filed under Order XXI Rule 97 is not maintainable. Order XX1 Rule 97 contemplates a situation, wherein the decree holder is obstructed from taking delivery and he moves for removal of resistance. Whatever that be, in the case on hand, the appellant has filed a petition under Order XXI Rule 97. Her claim is that her son, who has been abroad for a long time, has been shown as a tenant and a fraudulent order of revision has been obtained. The contention is that the premises was taken on rent for running a partnership concern of which, her son, herself and others were partners and the partnership firm was carrying on business EX SA 11/10 5 in the premises. It is also contended by her that there was an oral agreement for sale in her favour. Various other contentions were also taken. After taking evidence, the Execution Court found that the contentions are not tenable. As already stated, it is not necessary to consider in this appeal, whether the petition under Order XXI Rule 97 is maintainable or not. The Execution Court has passed an order under Order XXI 102 CPC adjudicating the rights set up in the claim petition and has come to a conclusion that it is not a bona fide claim. 9. It cannot be treated as an order under S.14 as contended by the learned counsel for the respondent. True, major portions of the application filed by the appellant assails the order of revision passed against the tenant. She also says that she has some independent rights in the premises. It is not in dispute that she is not a party to the proceedings. Whether the findings are tenable or not, is a different question. It cannot be said that no independent rights were being set up by her in her petition. EX SA 11/10 6 10. The learned counsel for the respondent referred to a decision reported in **Ayyappan Pillai v. Mohana Chandran Pillai** (2005(2) KLJ 435) in support of the contention that a revision alone is maintainable. In the said decision, interpreting S.14 and its proviso, the court held that a revision is maintainable mainly because the issue that arose for consideration was between the landlord and a tenant and not between a landlord and a third party. As far as a third party is concerned, the decision reported in _**Ravi Varma Raja v. Munsiff's Court**_ (supra) relied on by the learned counsel for the appellant applies. If that be so, it is to be treated as an order under Order XXI Rule 101 and so, naturally it will be a decree under Order XXI Rule 103 and the appeal is maintainable. 11. So, this Court is unable to accept the finding of the lower Appellate Court that the appeal is not maintainable. Accordingly, the impugned order is set aside and the matter is remanded to the lower Appellate Court for 7 EX SA 11/10 fresh disposal on merits in accordance with law and in the light of what has been stated above. The parties shall appear before the lower Appellate Court on 18.08.2010 and the Court shall endeavour to dispose of the appeal within two months thereafter. **P.BHAVADASAN, JUDGE** sta EX SA 11/10 8