ASWATHAPPA Vs. VENKATAMMA

JUDGEMENT

(1.) HRC .No.442/2003 was filed by the petitioner against M.Krishnappa for delivery of possession of the property in question. He also filed SC.No.728/2003 against M.Krishnappa to pass decree for recovery of arrears of rent. Both the cases were allowed. To execute the order of eviction passed in HRC.No.442/2003, petitioner filed Execution Case No.1712/2004 against M.Krishnappa. During the pendency of the matter, first respondent herein, filed an application under Order 21 Rules 97 to 101 r/w Section 151 CPC, to determine the questions including the question relating to right, title and interest on the subject property between the parties, including the objector, in respect of the property measuring 6 guntas, forming part of Sy.No.104 with a house constructed thereon, situated at Nagadevanahalli Dakhale, Muniyappanapalya, Kengeri Hobli, Bangalore. Application was opposed by the petitioner/decree holder. During the enquiry, applicant got herself examined as PW.1 and marked Exs.P -1 to P -17. The decree holder got himself examined as RW.1 and marked Exs.R -1 to R -38. Upon consideration of the rival contentions and the record of the case, Execution Court, by an order dated 14.08.2006, held that the applicant/objector failed to prove that she has got right, title and interest over the subject property and as a result, held that she is not entitled for the relief prayed in the application. The application having been dismissed, RFA.No.1693/2006 was filed. During the course of hearing, it transpired that the tenant M.Krishnappa abandoned the property, possession of which was sought to be recovered in Execution Case No.1712/2004. The statement made by the learned Advocate for the appellant, that the appellant is in possession of the property was disputed by the learned Advocate appearing for the decree holder. Taking note of the fact that the tenant has ceased to be in possession and enjoyment of the property, which was the subject matter of consideration in SC.No.728/2003 and HRC.No.442/2003, there being no need for the decree holder to execute the order passed in HRC.No.442/2003 and as no further orders were required to be passed in Execution Case No.1712/2004, on the submission made by Sri. T.A.Karumbaiah, that there is no need for the appellant to prosecute the appeal further, the appeal was dismissed as not surviving for consideration, with an observation that it is to the appellant and the first respondent to avail relief, if any, in accordance with law. Seeking review of the said judgment/decree, the first respondent in the appeal has filed this petition.

(2.) HAVING heard Sri. H.C.Shivaramu, learned Advocate for the petitioner, in my opinion, this petition has been filed under a misconception. SC.No.728/2003 and HRC.No.442/2003 filed by the petitioner have been allowed and the application of the objector filed in Execution Case No.1712/2004 was dismissed by the Execution Court. RFA.No.1693/2006 was not pursued for decision by the appellant therein and the appeal was not decided on its merit. The events which lead to the passing of the judgment dated 17.06.2013 in RFA.No.1693/2006 makes it clear, that it is unnecessary for the petitioner to seek review of the said judgment. In the circumstances, there being no error apparent on the face of the record, petition is rejected, with no order as to costs.