SHEHNAZ AFTAB KAPADIA Vs. NASEEM BANU

JUDGEMENT

(1.) THIS appeal is directed against the order, dated 22.2.2014 passed by the Execution Court (III Addl. City Civil & Sessions Judge, Bangalore) on I.A.No.4 in Execution Case No.1894/2010.

(2.) THE facts of the case in brief are that the appellant entered into the lease agreement, dated 1.8.1983 with the respondent No.1. She claims that she appointed the respondent No.2 as the Manager to look after the business. The respondent No.2 colluded with the respondent No.1 in O.S.No.6787/2005 filed by the respondent No.1 for ejectment. The respondent No.1 filed Execution Case No.1894/2010 seeking the enforcement of the ejectment decree. In the said execution proceedings, the appellant filed I.A.No.4 invoking Order 21 Rules 97 and 101 of C.P.C alleging the collusion between the respondent Nos.1 and 2. She claimed that she is the tenant in respect of the suit schedule property under the respondent No.1. On the Trial Court dismissing the said I.A., this appeal is filed by the obstructor.

(3.) SRI K.Subba Rao, the learned Senior Counsel appearing for Sri E.Venkatarami Reddy for the appellant submits that as per the lease deed, dated 1.8.1983, the appellant is the tenant and that the lease is not terminated. The appellant continues to be the tenant, as the lease is not terminated. The understanding reached between the appellant and her Manager, the respondent No.2 herein cannot be made use of to secure the vacant possession of the schedule property. He submits that her Manager, the respondent No.2 herein has played fraud on her. Without making the appellant a party to the ejectment suit, the collusive ejectment decree is obtained by the respondent No.1. He submits that the ejectment decree is virtually an exparte order. On the short ground of the non -joinder of necessary parties, the judgment and decree passed in O.S.No.6787/2005 is liable to be set aside. He submits that when the obstructing application is filed, it has to be tried as if it is a suit.