SHASHIKALA Vs. S SAVITHRI

JUDGEMENT

(1.) THE petitioner herein is residing in house bearing T. S. No. 9/2 of Kodiyalbail area within the Mangalore City Corporation belonging to smt. Somu Hengsu. The petitioner also claims that it had been rented out to one Smt. Kittu Hengsu. The landlord filed Original Suit No. 195 of 1986 on the file of the IV Additional Civil Judge (Junior Division), mangalore to eject the petitioner under the provisions of the Transfer of property Act. The said suit was decreed on 12-6-1998 ordering the petitioner to deliver vacant possession of the property. As against that judgment and decree the petitioner preferred an appeal before the appellate court which also came to be dismissed as they were not brought on record. Therefore, the respondent herein filed Ex. Case No. 113 of 1998 on the file of the 4th Additional Civil Judge (Junior Division), Mangalore, against the petitioner for executing the decree and to obtain possession of the house in question. The judgment-debtor raised objection by filing an application under Section 47 read with Section 151 of the CPC contending that the decree is inexecutable inasmuch as the decree is null and void. The learned Court below dismissed the Interim Application by order dated 14-9-2001. AS against the said order this petition is filed under Section 151 of the CPC.

(2.) HEARD Sri K. N. Patil the learned Counsel for the petitioner and Sri O. Shivaram Bhat the learned Counsel for the respondents.

(3.) THE learned Counsel for the petitioner has vehemently argued that the owner of the premises alleged in the lawyer's notice and in the plaint that this petitioner is in occupation of the premises as a tenant on a monthly rent of Rs. 15/-, but he filed the suit in on original side instead of invoking the Karnataka House Rent Control Act as by then the Act had come into force and covering the area where the suit schedule property is situated notwithstanding the fact that the petitioner has denied the relationship of landlord and tenant and that the petitioner contended that she is the owner in possession of the property and that she perfected the title by adverse possession, etc. In view of the fact that the court has declined to accept all the defence raised by the petitioner up-holding the contention of the plaintiff, it has to be presumed that the petitioner continued to be the tenant of the property. Therefore, the judgment and decree passed by the Civil Court under the Transfer of property Act is without jurisdiction. The Court below ought to have rejected the execution petition holding that the judgment and decree passed by the Court is unexecutable for want of inherent jurisdiction.