GUDAMA Vs. BABULAL

JUDGEMENT

(1.) This appeal is filed against the order dt.28-7-1973 passed by the Civil Judge, Bijapur, in Exn.A.3/73 confirming the order dt.23-6-1973 passed by the Principal Munsiff, Jamkhandi, in HRC Exn Case 64/1972. The respondent-decree-holdar Babulal had filed HRC Case 1/67 against Hazrabi, the widow of Nabi Sab and Guduma the present appellant who is the daughter of the said Nabi Sab, for possession of the suit premises under S.21(1) (a) and (h) of the Mysore Rent Control Act, 1961, Babulal alleged in the HRC 1/67 that he was the owner and the landlord of the, suit premises, that deceased Nabi Sab was the tenant of the suit premises under the rent note dt.22-11-49, that after his death the rents fell due from the two heirs of Nabi Sab, that they failed to pay the arrears of rent and deliver possession of the suit premises, that a petition for eviction was filed on ground of default in payment of rents as well as on the ground of bonafide requirement of the landlord for his personal use and occupation.

(2.) Against the interim order passed by the Court a CRP was filed and this Court directed the learned, Munsiff to decide the question of relationship of landlord and tenant between the parties and thereafter to decide the Other questions arising in the HRC proceeding. Thereafter the learned Munsiff, by an order dt. 10-2-72, held that the relationship of landlord and tenant existed between the decree-holder and Hazrabi only and that no such relationship existed between the decree-holder and Guduma, and in the same order the HRC application against Guduma was dismissed. Thereafter an application was filed by the decree-holder in the said HRC 1/67 under S.29(4) of the Rent Control Act to stop the proceedings against Hazarabi and to direct delivery of possession to the decree-holder since Hazrabi failed to deposit the arrears of rent inspite of directions given by the Court Accordingly, the learned Munsiff passed an order under S.29(4) of the R.C.Act and directed Hazrabi to put the decree-holder in possession of the ground floor of the suit premises by 31-5-1972. Thereafter the decreeholder put the said order in execution in HRC Exn.54/72 on 1-6-1972 praying for possession of the ground floor of the, suit premises. In the mean while Guduma filed an application in the execution case praying for an order projecting her rights in issuing the possession warrant. That application was dismissed on 3-8-1972. The possession warrant was thereafter issued and was returned unexecuted since Guduma offered obstruction. Thereafter the decree-holder filed an application for the removal of the obstruction. Then, the learned Musiff directed the decreet-holder in the first instance, to file a Misc Appln under Or.21, R.97 CPC. On the objections filed on behalf of Guduma the learned Munsiff psased an order on 9-3-1973 holding that the application under Or.21, R.97 CPC was not maintainable and directed that the, Misc Appln be, taken on file in the, execution itself and be numbered as I.A.-II. Guduma filed her objections to I.A.-II contending that an order had been passed in HRC case to the effect that she is not a tenant and that therefore her possession could not be! disturbed under the order of eviction obtained by the decree-holder in HRC 1 of 1967. The learned Munsiff held that the resistance offered by Guduma is not in her own right as contemplated under the proviso to S.30 of the Karnataka Rent Control Act and directed the delivery of possession. Thereupon Guduma appealed in Exn App.3 of 1973 to the Court of the Principal Civil Judge, Bijapur.

(3.) The lower appellate Court felt that the, order passed on I.A.-II by the learaned Munsiff must be deemed to be one under Or.21, R.97 CPC and that therefore the appeal was not maintainable- It also considered the objections raised by Guduma and held that Guduma was not entitled to resist the order for delivery of possession under the proviso to S.30 of the Karnataka Rent Control Act.