C SOME GOWDA Vs. C RANGA RAO

JUDGEMENT

(1.) THE Decree holder has filed this Appeal under Order 43 Rule 1 of the Civil Procedure Code 1908 ( for short 'c. P. C. ') calling in question the order dated 12. 6. 2003 passed in Ex. No. 1979/2002 on the file of the Chief Judge, Court of Small Causes, Bangalore, (for short, 'executing Court' ).

(2.) THE brief facts leading to the filing of this Appeal are: the Decree Holder is the owner of the immovable property being a residential house bearing No. 1290 MRHB Colony, Govindrajnagar, Magadi Chord Road, Bangalore -79. The Decree Holder leased the premises to one Ranga Rao - the Judgment Debtor. The Judgment Debtor having refused to vacate the premises, the Decree Holder had to initiate eviction proceedings, which finally resulted in an order for eviction of the Judgment Debtor. The Judgment Debtor filed O. S. 168/1986 contending that the Decree Holder was trying to forcibly dispossess him from the plaint schedule premises which was withdrawn by the Judgment Debtor subsequently. It is also contended that the Decree Holder having retired from the service as an Executive Engineer in public Works Department, on coming to know that the Judgment Debtor had played a fraud by securing the sale deed of the said immovable property from the Karnataka Housing Board as power of Attorney Holder of the Decree Holder, compelled the Decree Holder to move the authorities of the Karnataka Housing Board who cancelled the said sale deed. It is also alleged that immediately after securing the sale deed by the Judgment Debtor, he had conveyed the title of the property to his wife-Dhanalakshmi who in turn, had executed the sale deed in favour of late Dhanraj, a practicing Advocate. In this regard, the Decree Holder on information of the mischief got issued a notice through his counsel to the said Dhanraj informing him about the rights of the Decree Holder and also requesting him not to enter into any transaction or become a victim of mechanisation of the Judgment Debtor or his wife.

(3.) THE Decree Holder armed with an order of eviction, filed an Execution Petition to execute the said order in Ex. No. 1979/2002. In the said proceedings, it is not in dispute, that the Decree holder secured possession without any resistance or obstruction either from the legal representatives of deceased Dhanraj or muchless the Judgment Debtor - Rangarao or his wife dhanalakshmi. However, in the proceedings before the Executing Court, the legal representatives of deceased Dhanraj viz. respondents 2 to 4 filed applications under Order 21 rule 97, 99, 100, 101 r/w Section 151 of C. P. C. objecting the delivery of possession. The objectors neither adduced oral evidence nor advanced argument on the applications filed by them. The Civil Court having considered the applications and the relevant fact that there was neither resistance nor obstructions offered by the objectors to the Decree Holder while taking possession of the immovable property, held that the applications filed by the objectors were not maintainable and accordingly dismissed the applications. The appellant-decree holder has called in question the said order in so far as it relates to failure on the part of the Executing Court in not holding an enquiry and determining the question of title to the immovable property while dismissing the applications.