YESHWANTHA RAO Vs. KAMALA KAKADE

JUDGEMENT

(1.) THE petitioner/applicant-objector in Execution Case No. 15420 of 2008 on the file of XV Additional Judge, Court of Small Causes, Mayo Hall, Bangalore City, is before this Court, praying for quashing the order dated 23-11-2009 passed on LA. No. VII filed in the execution case at Annexure-E1.

(2.) THE brief facts of the case leading to the filing of the writ petition may be stated as under. One Smt. Kamala Kakade filed an eviction petition under Section 21 (1 )(a) of the Karnataka Rent Control Act, 1961, for eviction of her tenant-Smt. Umadevi Bhanudas. THE tenant had deposited arrears of rent in the year 2003; though she was in arrears of rent from 1993, During the pendency of the eviction petition, the petitioner/landlady died. THErefore, her L.Rs. have come on record. THE L.Rs of the landlady (respondents 1, 2 and 3) were brought on record. Subsequently, the tenant also died. THE landlords sought to implead sister of the tenant on record. Notice was served on her, but she appeared before the Court and submitted that she was not interested to contest the case. Hence, notice was issued to the Administrative General. As the tenant had deposited entire arrears of rent, the Court of Small Causes dismissed the eviction petition. Feeling aggrieved by the order made in the eviction petition, L.Rs. of the original landlady filed revision petition in H.R.R.P. No. 61 of 2005 on the file of this Court. THE said revision petition was allowed by order dated 28-5-2008 (vide Annexure-F1). Consequently, the order dated 30-10-2004 made in HRC No. 10208 of 1999 on the file of XV Additional Court of Small Causes, Bangalore, was set aside and the eviction petition was allowed permitting the L.Rs. of the original landlady to occupy the premises and also to withdraw the rents deposited by the tenant in the eviction petition. For taking possession of the petition schedule premises, the respondents 1 to 3 filed execution case in No. 15420 of 2008. THE Executing Court issued a delivery warrant, but returned un-executed on the ground that the door was locked. THErefore, the decree-holders filed I. A. No. I under Order 21, Rule 35 read with Section 151 of the Civil Procedure Code, 1908 to break open the lock with police help and take delivery of the petition schedule premises. On 6-12-2008, LA. No. I filed under Order 21, Rule 35 was allowed to execute the delivery warrant by breaking open the lock with police help. Accordingly, delivery warrant was issued on 10-12-2008. On 16-12-2008, the petitioner herein filed an application under Order 21, Rules 97 to 101 read with Section 151 of the CPC. I.A. No. II was posted for objections. THE decree-holders filed objections to I.A. No. II. Subsequently, the petitioners herein filed application I.A. No. VII under Section 151 of the CPC on 13-11-2009 praying for recalling the order dated 27-11-2008 and dismiss the execution petition. THE decree-holders filed detailed objections. THE Trial Court after hearing arguments on I.A. No. VII passed the impugned order rejecting I.A. No. VII with costs. This is impugned in the writ petition.

(3.) PER contra, learned Counsel appearing for the petitioner submits that certain observations made in the impugned order are not correct and those observations, if remain on record, would prejudice the case of the petitioner. Therefore, he submits that the entire impugned order may be set aside and I.A. No. VII may be allowed, as prayed for.