Potti Purayil Sharafunnissa v. Kandambath Achamveettill Sathya Bhama

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944 OP (RC) NO. 219 OF 2022** **AGAINST THE ORDER IN EP NO.67/2019 IN RCP 35/2013 OF MUNSIFF COURT, PAYYANNUR** ## **PETITIONERS/RESPONDENT/RESPONDENT:** **POTTI PURAYIL SHARAFUNNISSA AGED 59 YEARS D/O ASEEZ, RESIDING AT CHITTARIKKAL, PERUMBA, PAYYANUR P.O., PAYYANNUR AMSOM & DESOM, PAYYANUR THALUK, KANNUR DISTRICT, PIN - 670307** **BY ADV P.M.UNNI NAMBOODIRI** ## **RESPONDENT/PETITIONER/PETITIONER:** **KANDAMBATH ACHAMVEETTIL SATHYA BHAMA AGED 60 YEARS** **D/O K. U. SEKHARA PODUVAL, NEAR ARADHANA TALKIES, PAYYANUR P.O, PAYYANUR AMSOM, KOKKANISSERY DESOM, PAYYANUR THALUK, KANNUR DISTRICT, PIN - 670307** **BY ADVS. ANISH JOSE ANTONY ANJU MOHAN(K/916-D/2000)** **THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 24.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(RC) No.219 of 2022 -: 2 :- ## **P.B.SURESH KUMAR & SOPHY THOMAS, JJ. -----------------------------------------------** ## **O.P. (RC) No.219 of 2022** ## **----------------------------------------------Dated this the 24[th] day of January, 2023** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** The petitioner in this original petition is the sole respondent in E.P.No.67 of 2019 before the Munsiff Court, Payyannur. The execution petition was instituted by the respondent herein to execute an order of eviction obtained by her against the petitioner, in R.C.P.No.35 of 2013. 2. The order of eviction in R.C.P. No.35 of 2013 is one obtained by the respondent against the petitioner under the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) for eviction of a premises on 30.10.2014. Though an application has been filed by the respondent as E.P.No.58 of 2014 to execute the order of eviction in R.C.P.No.35 of 2013 earlier, the same was not pressed by her, as there was an arrangement between the parties to permit the petitioner to occupy the premises for five more years from 30.10.2014 on a higher rent. E.P.No.67 of 2019 was filed by the respondent on OP(RC) No.219 of 2022 -: 3 :- the expiry of the said term of five years for execution of the order in R.C.P.No.35 of 2013. The petitioner filed objections to the execution petition contending that inasmuch as a fresh arrangement has been arrived at between the parties after the order of eviction, the eviction petition is not maintainable. It was also contended by the petitioner in her objections that inasmuch as the order of eviction was one obtained under Section 11(3) of the Act for the _bona fide_ need of the respondent, the same cannot be executed after a period of five years. The Execution Court repelled the contentions raised by the petitioner and ordered delivery of the premises, as per Ext.P9 order. Ext.P9 order is under challenge in this original petition. 3. Heard the learned counsel for the petitioner as also the learned counsel for the respondent. 4. The order impugned in this proceedings being one passed in execution under Section 14 of the Act, a revision would lie against the said order before the court to which appeals ordinarily lie against the decisions of the court which passed the order. The original petition instituted against the said order invoking Article 227 of the Constitution of India, in OP(RC) No.219 of 2022 -: 4 :- the circumstances, is not maintainable. Nevertheless, insofar as this Court has entertained the original petition and passed interim orders in the matter, we propose to deal with the contentions raised by the petitioner on merits in this proceedings itself. 5. There is no dispute in this case as to the relevant facts. The respondent admits that after the order of eviction, the parties have entered into Ext.P4 agreement, in terms of which she permitted the petitioner to occupy the premises for five more years from 30.10.2014 on a higher rent, and the earlier petition filed by her to execute the order of eviction, viz, E.P.No.58 of 2014 was consequently not pressed. According to the respondent, the present execution petition instituted after the period specified in Ext.P4 agreement is perfectly maintainable, whereas the petitioner contends that in the light of the subsequent arrangement, the execution petition is not maintainable. 6. Sub-rule (1) of Rule 2 of Order 21 of the Code of Civil Procedure (the Code) provides that where 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 OP(RC) No.219 of 2022 -: 5 :- such payment or adjustment to the court whose duty it is to execute the decree and the Court shall record the same accordingly. Sub-rule (2) of Rule 2 provides that the judgment debtor may also inform the Court of such adjustment and apply to the Court to issue a notice to the decree holder to show cause why such adjustment should not be recorded as certified and if the decree holder fails to show cause why the adjustment should not be recorded as certified, the court shall record the same accordingly. Sub-rule (3) of Rule 2 provides that adjustments which have not been certified or recorded as provided for in Rule 2, shall not be recognised by any Court executing the decree. The plea taken by the petitioner that there has been a fresh arrangement between the parties to permit the petitioner to occupy the premises for five more years from 30.10.2014 on a higher rent would certainly amount to an adjustment of the order of eviction. If that be so, the same had to be recorded and certified under Rule 2 of Order 21 of the Code. Since this was not done, sub-rule (3) of Rule 2 precludes the Court from recognising the said adjustment. In **Sultana Begum v. Prem Chand Jain** , (1997) 1 SCC 373, the Apex Court repelled a similar contention in an OP(RC) No.219 of 2022 -: 6 :- application preferred for execution of a decree for eviction viz, that the judgment debtor had delivered possession of the premises to the power of attorney holder of the decree holder and is occupying the premises thereafter as a licensee, on the basis of an arrangement entered into by him with the power of attorney holder of the decree holder. Paragraph 27 of the judgment of the Apex Court in the said case reads thus: “27. The decree was for eviction and the respondent himself had agreed in the compromise decree to deliver possession to the appellant by 10-2-1992. The plea relating to the delivery of possession in pursuance of the compromise decree, if accepted, would amount to an adjustment of the decree which shall consequently be treated to have been partially satisfied to the extent of eviction of the respondent as a tenant from the disputed property. That being so, it had to be recorded and certified under Order 21 Rule 2. Since this was not done, the provisions of Order 21 Rule 2(3) prohibiting the executing court from giving effect to the said plea were applicable and the executing court acted erroneously in refusing to execute the decree for eviction of the respondent on the ground that possession having been delivered to the appellant's attorney, the decree, to that extent, stood satisfied.” If subsequent arrangement which has not been certified in terms of Rule 2 of Order 21 of the Code cannot be recognised by the Court executing the decree, an execution petition filed within time cannot be said to be not maintainable. The contention raised by the petitioner in this regard is therefore OP(RC) No.219 of 2022 -: 7 :- rejected. 7. There is also no merit in the contention taken by the petitioner that an order of eviction obtained under Section 11(3) of the Act cannot be executed after a period of five years. According to the petitioner, such orders are to be executed within a reasonable time. True, the subsequent conduct of the respondent permitting the petitioner to occupy the premises for five more years from the date of the order of eviction, creates doubts as to the genuineness of the need put forward by the respondent for eviction under Section 11(3) of the Act. But inasmuch as the said order has become final and is binding on the parties, in the absence of any law precluding the respondent from executing orders of eviction beyond a reasonable period, an execution petition preferred within the period prescribed cannot be said to be not maintainable. The original petition, in the circumstances, is dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **SOPHY THOMAS, JUDGE.** ds 27.01.2023 OP(RC) No.219 of 2022 -: 8 :- ## **APPENDIX OF OP (RC) 219/2022** ## **PETITIONER EXHIBITS** - **Exhibit P1** **THE TRUE COPY OF RENT AGREEMENT EXECUTED BETWEEN THE PETITIONER AND RESPONDENT DATED 19.10.1993** - **Exhibit P2** **THE TRUE COPY OF THE ORDER DATED 22/01/2014 IN RCP NO.35/2013 OF THE RENT CONTROL COURT(MUNSIFF) PAYYANUR.** - **Exhibit P3** - **THE TRUE COPY OF EP NO. 58/2014 IN RCP NO.35/2013 BEFORE THE RENT CONTROL COURT(MUNSIFF) PAYYANUR DATED 19.07.2014** - **Exhibit P4 THE TRUE COPY OF THE LEASE AGREEMENT EXECUTED BETWEEN THE PETITIONER AND RESPONDENT DATED 1.12.2014** - **Exhibit P5 TRUE COPY OF THE EP NO. 67/2019 IN RCP NO.35/2013 FILED BEFORE THE MUNSIFF COURT PAYYANNUR DATED 15.11.2019** - **Exhibit P6 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER IN EP NO. 67/2019 IN RCP NO.35/2013 FILED BEFORE THE MUNSIFF COURT PAYYANNUR** - **Exhibit P7 THE TRUE COPY OF THE NOTICE ISSUED BY THE PETITIONER TO THE RESPONDENT DATED 09.12.2019** - **Exhibit P8 THE TRUE COPY OF STATEMENT DATED 11.10.2021 FILED BY THE PETITIONER IN EP NO. 67/2019 BEFORE THE MUNSIFF COURT PAYYANNUR** **Exhibit P9** - **THE TRUE COPY OF ORDER IN EP NO. 67/2019 IN RCP NO. 35/2013 DATED 7/11/2022 OF THE MUNSIFF COURT PAYYANNUR**