## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 16[TH] DAY OF FEBRUARY 2022 / 27TH MAGHA,**
## **1943**
## **OP(C) NO. 531 OF 2018**
**(AS 86/2008 OF ADDITIONAL DISTRICT COURT - II,**
## **KASARAGOD)**
## **PETITIONER/S:**
P.T.THOMAS AGED 63 YEARS RESIDING AT PUNCHATHARAPPAL HOUSE, KARUVANCHAL, VELLAD VILLAGE, TALIPARAMBA TALUK,KANNUR DISTRICT, PIN - 670 571. BY ADVS. SRI.JAWAHAR JOSE SMT.CISSY MATHEWS
## **RESPONDENT/S:**
K.A.CHANDI KADUKAMMAKKAL HOUSE, IDAKKAOLY, PALAVAYAL VILLAGE,HOSDURG TALUK, KASARAGOD DISTRICT, PIN670 511. BY ADV SRI.M.SASINDRAN
**THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25.11.2021, THE COURT ON 16.02.2022, DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
**Dated this the 16[th] day of February, 2022 The petitioner is the judgment debtor in E.P.No. 1 of 2016 on the files of the Munsiff’s Court, Payyannur. The execution proceedings arise from O.S. No. 103 of 2008, filed by the respondent for recovery of possession of a room leased out to the respondent along with an amount of Rs. 7200/- with 6% interest towards arrears of rent. The suit was decreed as sought for and a further direction was also issued, requiring the respondent to pay an amount of Rs.600/- per month towards damages for use and occupation of the room from 01.05.2008, till the date of actual delivery. The second appeal filed by the petitioner was dismissed at the admission stage. However, the petitioner was granted six months time to vacate the premises, subject to his**
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**filing an affidavit before the execution court undertaking to vacate the premises unconditionally. The petitioner was also made liable to pay the entire rent up to the date of occupation. The petitioner did not file the affidavit as directed and continued to occupy the room, till he was evicted on 04.01.2016. The execution petition was filed thereafter, seeking to realise rent for the period from 01.05.2008 to 01.12.2015, in accordance with the direction in the second appeal judgment, which required the petitioner to pay rent up to the date of occupation.**
**2. Heard.**
**3. The primary contention urged by the learned Counsel for the petitioner is that, the High Court having dismissed the petitioner's second appeal at the admission stage, the executable decree is that of the first appellate**
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**court. In support of the contention that the dismissal of a second appeal at the admission stage cannot be equated to an adjudication determining the rights of parties, reliance is placed on the decision in** _**Vishwambharan v. Parameswaran Ashari [1987 (1) KLT 543]**_ **. Alternatively, it is contended that the petitioner having failed to file the affidavit, undertaking to vacate the premises within six months, the ancillary direction to pay rent up to the date of occupation cannot be enforced through execution proceedings.**
**4. In reply, learned Counsel for the respondent argued that, having suffered a judgment in the second appeal and having continued in occupation of the premises after the judgment, petitioner is bound to pay rent for the period of occupation and the technical contention now raised will not exonerate him from the liability.**
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**5. In order to decide the dispute, it may be pertinent to note that the trial court had decreed the suit, directing the petitioner to surrender vacant possession of the building and to pay a sum of Rs.7,200/- with interest at the rate of 9% per annum from the date of suit till realisation with cost. The petitioner was also directed to pay damages at the rate of Rs.600 per month from 01.05.2008 till the date of actual delivery. The First Appellate Court allowed the petitioner’s appeal in part, confirming the judgment and decree of the trial court directing surrender of vacant possession of the plaint schedule room and payment of Rs.7,200/- with interest. The judgment, to the extent it directed the petitioner to pay damages at the rate of Rs.600/- per month was set aside. The respondent has not challenged that part of the first appellate judgment.**
**6. The second appeal filed by the**
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**petitioner was dismissed by this court finding no substantial question of law to have arisen for consideration. Even though the second appeal was dismissed, the petitioner was granted six months time to vacate the premises, subject to his filing an affidavit of undertaking in the execution court within three weeks. The petitioner was also required to pay the entire rent up to the date of occupation. The petitioner did not file the undertaking as directed, but continued to occupy the premises, till he was evicted on 04.01.2016. No doubt, the petitioner is liable to pay rent for the period he was in occupation of the premises. The question is whether that amount can be recovered in purported execution of the judgment and decree in the second appeal. This precisely was the question considered in** _**Vishwambharan**_ **(supra). Therein, the learned Single Judge, after careful analysis of Section 100 and 101 of CPC, held that when a**
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**second appeal is dismissed** _**in limine**_ **, what happens is only an expression of opinion by the court that an appeal is not entertainable; and there is no adjudication, judgment or decree in such a case. The contextually relevant portion of the judgment, which led to the above conclusion reads as follows;**
_**“6. The provisions of the Code dealing with Second Appeals are primarily those contained in S.100 and 101 of the Code; and after Act 104/76, they read as follows: “100. Second appeal.-- (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed ia appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be beard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:**_
_**Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other Substantial**_
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_**question of law, not formulated by it, if it is satisfied that the case involves such question”. x x x**_
_**“101. Second appeal on no other grounds. No second appeal shall lie except on the grounds mentioned in S.100.” While S.100 provides that a second appeal to the High Court will lie if that Court is satisfied that the case involves a substantial question of law, S.101 puts it negatively by directing that no such appeal shall lie unless such a question of law is involved. Where, therefore, the High Court rejects or dismisses a second appeal at the admission stage itself, without notice to the other side, what it really does is to hold or declare that in the particular case, no second appeal lies. If you stretch it a little more and fall back on the language of S.100, you may be able to suggest that what is done is to hold that the case involves no substantial question of law. To say that no appeal will lie owing to absence of any substantial question of law cannot be equated to an adjudication determining the rights of parties, the formal expression of which alone will be a ‘decree’ under S.2(2).”**_
_**(underlining supplied)**_
**I am in respectful agreement with the above view. This Court had dismissed the petitioner’s second appeal on finding that no substantial question of law was involved. As such, there is no adjudication, judgment or decree in the second appeal. Hence, as rightly contended by the learned Counsel for the petitioner, the**
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**executable decree is of the first appellate Court, the trial court decree having merged with that of the appellate court.**
**7. The fact that the petitioner did not file the affidavit as directed in the second appeal judgment is also indisputable. The direction to pay the rent up to the date of occupation being a condition to be complied with in the event of the petitioner continuing to occupy the premises after filing the affidavit as directed, the contention that the petitioner is bound to pay the rent in accordance with the direction in the second appeal, cannot also be countenanced. Hence, what can be executed is the decree of the first appellate court requiring the petitioner to pay Rs.7,200/- with interest at the rate of 9% per annum from the date of suit till realisation, with costs. The rent for the period from 01.05.2008 to 01.12.2015 will have to be realised by filing a separate suit.**
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**In the result, the original petition is allowed. Ext.P7 order is set aside. The further proceedings in E.P.No.1 of 2016 on the files of the Munsiff’s Court, Payyannur, shall be confined to execution of the decree in A.S.No.114 of 2010 of the Subordinate Judge’s Court, Payyannur.**
**Sd/V.G.ARUN JUDGE**
**Scl/**
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## **APPENDIX OF OP(C) 531/2018**
|PETITIONER|EXHIBITS|
|---|---|
|EXHIBIT.P1|TRUE COPY OF THE EXECUTION PETITION|
||FILED BY THE RESPONDENT AS|
||E.P.NO.1/2016 BEFORE THE MUNSIFF'S|
||COURT, PAYANNUR|
|EXHIBIT.P2|TRUE COPY OF THE COUNTER STATEMENT|
||FILED BY THE PETITIONER IN|
||E.P.NO.1/2016 BEFORE THE MUNSIFF'S|
||COURT, PAYANNUR|
|EXHIBIT.P3|TRUE COPY OF THE JUDGMENT DATED|
||21.7.2010 IN O.S.NO.103/2008 OF THE|
||MUNSIFF'S COURT, PAYYANNUR|
|EXHIBIT.P4|TRUE COPY OF THE JUDGMENT DATED|
||30.06.2014 IN A.S.NO.114/2010 OF THE|
||SUB COURT, PAYYANNUR|
|EXHIBIT.P5|TRUE COPY OF THE JUDGMENT DATED|
||26.9.2014 IN R.S.A.NO.999/2014 OF THIS|
||HON'BLE COURT.|
|EXHIBIT.P6|TRUE COPY OF THE ARGUMENT NOTES|
||SUBMITTED BY THE PETITIONER IN|
||E.P.NO.1/2016 BEFORE THE MUNSIFF'S|
||COURT, PAYYANNUR.|
|EXHIBIT.P7|TRUE COPY OF THE ORDER DATED 20.1.2018|
||IN E.P.NO.1/2016 OF THE MUNSIFF'S|
||COURT, PAYYANNUR.|
