Syamlal and Jayaraj v. Philip Thomas and Cherian Philip (Ex.SA.No.6 of 2021)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 10TH DAY OF MARCH 2021 / 19TH PHALGUNA, 1942** ## **Ex.SA.No.6 OF 2021** **AS 81/2020 OF ADDITIONAL DISTRICT COURTT - VIII, ERNAKULAM** **RCP 103/2018 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM** ## **APPELLANTS/APPELLANTS/CLAIM PETITIONERS:** **1 SYAMLAL AGED 38 YEARS S/O.THULASIDAS, KARUPPUNKUDIYIL (H), THRIKALATHOOR, MUVATTPUZHA. 2 JAYARAJ, AGED 39 YEARS S/O.MANI,VELICHAPPATTUTHAYYIL,ASRAMAM WARD, AROYAD SOUTH, ALAPPUZHA. BY ADV. SRI.ABRAHAM JOHN** ## **RESPONDENTS/RESPONDENTS/DECREE HOLDERS:** **1 PHILIP THOMAS, AGED 76 YEARS, S/O.THOMAS, K/12 BCG GOLDEN ORCHID, IIND PHASE, RUBY LANE, THAMMANAM, KOCHI-32. 2 CHERIAN PHILIP, AGED 44 YEARS, S/O.THOMAS, K/12 BCG GOLDEN ORCHID, IIND PHASE, RUBY LANE, THAMMANAM, KOCHI-32.** **R1-2 BY ADV. SRI.M.R.HARIRAJ R1-2 BY ADV. SMT.THANUJA ROSHAN R1-2 BY ADV. SHRI.VISWAJITH C.K R1-2 BY ADV. SMT.GANGA A.SANKAR R1-2 BY ADV. SHRI.CHACKOCHEN VITHAYATHIL R1-2 BY ADV. SMT.GISHA G. RAJ R1-2 BY ADV. SHRI.REJIVUE R1-2 BY ADV. SHRI.VISHNU RAJAGOPAL** **THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05-03-2021, THE COURT ON 10-03-2021 DELIVERED THE FOLLOWING:** Ex.S.A.No.6 of 2021 ..2.. ## **[CR]** ## **JUDGMENT** The petitioners are strangers to the decree who have offered resistance to the execution of the decree obtained by the decree holder against the judgment debtor. In R.C.P.No.103/2018, an eviction order was passed by the Rent Control Court against the tenant of the building. The tenant defaulted paying the rent in time. Hence an eviction order was passed by the Rent Control Court under Section 12 of the Kerala Buildings (Lease and Rent Control) Act, 1965. Evidently, the eviction order was passed for non-payment of admitted arrears of rent within the permissible time in accordance with Section 12(3) of the Act. The tenant is a huge defaulter. The total rent due from the tenant exceeds Rs.12,15,000/-. 2. The case of the appellants is that they being inmates of a hostel and boarding house, they cannot be evicted except in accordance with the due process of law. Ex.S.A.No.6 of 2021 **==> picture [22 x 8] intentionally omitted <==** The executing court dismissed the obstruction raised by the appellants. An appeal was taken before the first appellate court. It was also dismissed confirming the order of the executing court. Relying on **Prabhakaran v. Kuttian Prakashan** [1985 KLT 225], **Arjunan Achary v. Thankamma** [1988 (2) KLT 857], **Augustine & Company v. Damodaran** [1991 (2) KLT SN 16], **Devassia Joseph v. Vysya Bank Ltd.** [1990 (2) KLT 339] and **Moideen v. Kadeesa Umma** [1991 (1) KLT SN 57] the first appellate court held that an obstructor who is not a party to the suit cannot object to the delivery in the execution court before delivery is effected. Hence, the first appellate court held that the remedy of an obstructor is to file a suit before delivery or file an application under Rule 99 of Order XXI C.P.C. for re-delivery of the property. 3. Heard the learned counsel for the appellants and the learned counsel for the respondents. Ex.S.A.No.6 of 2021 **==> picture [22 x 8] intentionally omitted <==** 4. Relying on **Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another** [1997 KHC 804], the learned counsel for the appellants contended that the appellants who are strangers occupying the decretal premises in their own right and who have offered resistance to the execution of the decree obtained by the decree holder against the judgment debtor is entitled to request the executing court to adjudicate upon their resistance and obstruction without being insisted upon that first they must handover possession and then only move an application under Order XXI Rule 99 of the C.P.C. 5. The executing court has negatived the contentions on merits holding that the appellants are claiming under the judgment debtor and they have no independent right to raise an obstruction in execution of a decree for eviction against the tenant. Although the first Ex.S.A.No.6 of 2021 **==> picture [22 x 8] intentionally omitted <==** appellate court agreed with the executing court, the appeal was dismissed holding that the appellants have no locus standi to get adjudication of their claim prior to the actual delivery of possession to the decree holder in the execution proceedings. In **Brahmdeo Chaudhary's** case (supra), the Apex Court held that the claim of stranger obstructionist would only be considered after he has lost his possession to decree holder would result in patent breach of principles of natural justice as the obstructionist who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree holder. In the light of the decision referred Ex.S.A.No.6 of 2021 **==> picture [22 x 8] intentionally omitted <==** to above, the stranger obstructionist is entitled to raise his objection before he has lost his possession to the decree holder in accordance with the scheme of Order XXI Rule 97 of the C.P.C. and the preceding Rules thereof. It is true that, the finding of the first appellate court in this regard is apparently illegal and is unsustainable in law. However, the first appellate court has agreed with the other findings of the executing court that the stranger obstructionist is claiming under the judgment debtor and no formal adjudication is warranted as per the scheme of Order XXI Rule 101 of the C.P.C. 6. In the case on hand, admittedly, the building was taken on rent for conducting a hostel on which the present obstructors are occupying a room for their residential purpose. They are paying accommodation charge as well as security to the tenant who is the judgment debtor in the execution proceedings. In fact, Ex.S.A.No.6 of 2021 **==> picture [22 x 8] intentionally omitted <==** there is no privity of contract between the decree holder and the appellants. The decree schedule building was leased out, admittedly, for the purpose of conducting a hostel business. The appellants were put in possession of the room in the hostel by the tenant who is the judgment debtor in this case. As stated earlier, huge amount is due to the decree holder by way of arrears of rent. The judgment debtor failed to pay the amount. Instead of paying the amount, the judgment debtor is trailing behind the curtain and has instigated two inmates of the hostel to raise obstructions and seek adjudication as contemplated under Order XXI Rule 101 of the C.P.C. Hence, it is not necessary to determine a question raised by them that they were independently in possession of the decree schedule property and they were put in possession of the room as tenants coming under the purview of the Rent Control Act or the Transfer of Property Act. Admittedly, Ex.S.A.No.6 of 2021 **==> picture [22 x 8] intentionally omitted <==** they were not put in possession of the property as tenants by the decree holder. It is their case that they were put in possession of the property by the tenant. Relying on **Abdul Hai N. and Others v. K.Nandakumar and Others** [2012 (2) KHC 729], the learned counsel for the appellants contended that the appellants are inmates of a hostel and they are exempted under the Rent Control Act presumably for the reason that they are in occupation of a room in the decree schedule property under the tenant. The principles stated in the decision are not applicable in this case. The appellants failed to prove that they had any privity of contract between the landlord and tenant to get the benefit either under the Transfer of Property Act or under the Rent Control Act. The contention is not tenable in law particularly in view of the fact that huge amount is due to the landlord by way of arrears of rent. Merely because the appellants have been in possession of the Ex.S.A.No.6 of 2021 **==> picture [22 x 8] intentionally omitted <==** room in a hostel as per the arrangement between the tenant and the appellants, they cannot claim any benefit under the Rent Control Act or under the Transfer of Property Act. They are bound by the decree for eviction passed against the original tenant. 7. The appellants, who are claiming under the judgment debtor, are not entitled to question the validity of the decree passed in this case. Hence, the executing court is not obliged to determine a question under Rule 101 of the C.P.C. merely because the resistor raised it. The words “all questions arising between the parties to a proceeding on an application under Order XXI Rule 97” would envelope only such questions as would legally arise for determination between the parties and that such questions must be relevant for consideration and determination between the parties. Where no question of law or not even a mixed question of law and fact was Ex.S.A.No.6 of 2021 **==> picture [28 x 8] intentionally omitted <==** urged before the executing court or the first appellate court, as in this case, a second appeal cannot be entertained merely because the first appellate court wrongly interpreted the procedure provided under Order XXI Rule 97 of the C.P.C. The contention that the decree holder shall issue notice to all the inmates of the hostel one by one in accordance with law and shall evict them in accordance with the procedure established by law is unsustainable. There was no debatable issue before the executing court or the first appellate court which was not covered by settled principles of law. There was no erroneous inference from any proved fact. Resultantly, the Execution Second Appeal is dismissed. There will be no order as to costs. Pending applications, if any, stand disposed of. **Sd/N.ANIL KUMAR, JUDGE** skj