D NARAYANA GOWDA Vs. I N KRISHNA MADYATHA

JUDGEMENT

(1.) The Court delivered the following : The appellants are the legal representatives of the decree-holder. Respondent is the judgment-debtor. The decree-holder was the petitioner in HRC.663 of 1964 on the file of the 1st Addl Munsiff, Bangalore, in which he sought the eviction of his tenant, the present judgment-debtor, under S.21 ox the Karnataka Rent Control Act, 1961. During the pendency of the HRC proceedings, an application was filed by the landlord-decree holder under S.29(4) of the Karnataka Rent Control Act. After hearing the parties, an order of eviction was passed on 23-3-1971, giving time to the tenant till 4-4-1971 to vacate the schedule premises. Against that order the judgment-debtor filed the revision petition CRP.867 of 1971 in this Court which was heard and dismissed on 5-7-1971. Thereafter, the judgment- debtor filed IA-IV in CRP.867 of 1971 on 22)25-8-1973 praying for extension of time for vacating the premises for one year from 5-7-1972. In the affidavit of the judgment-debtor accompanying the application it was stated that the original decree-holder had died on 26-10-1971 after the order passed in the CRP and it is necessary to array the legal representatives of the deceased decree-holder as parties to that petition. The legal representatives of the decree-holder, who are the present appellants, were made parties to that petition in that capacity. No order appears to have been passed on that application. Thereafter, the judgment-debtor filed the suit OS.308 of 1972 on the file of the 1st Addl Civil Judge, Bangalore City, for a declaration that the order of eviction passed in HRC proceedings is null and void and for other reliefs and obtained an exparte order of injunction. After the decree-holder appeared and contested, the order of temporary injunction was vacated on 31-5-1973. Against that order, the judgment-debtor filed MA.96 of 1973 in the Court of the Dist Judge, Bangalore. That appeal was dismissed on 25-9-1973. Against that dismissal order of the Dist Judge, the judgment-debtor filed CRP.2436 of 1973, which was also dismissed on 21-3-1974.

(2.) The appellants sough out execution of the eviction order in EP.508/74, on 16-4-1974. The judgment-debtor filed his objections. He also filed an application under S.47 CPC, on 17-4-74 praying that the Court may hold an enquiry and dismiss the execution petition. In the affidavit accompanying that application it was stated that the deceased decree-holder had sold the property in favour of one Srinivasa Setty under a sale deed d/.3-9-1963 and that he therefore lost title to the property before he filed the HRC eviction petition. It was also alleged that the deceased decree-holder obtained an order of eviction by fraud, that the HRC Court had no jurisdiction to pass an order of eviction and that the order is therefore without jurisdiction, null and void and inexecutable, that the appellants are executing the said order as legal representatives of the deceased decree-holder, but since the eviction order itself is null and void, it must be held that the decree is set aside and cannot be executed. The appellants filed a rejoinder to the judgment debtor's application. The executing Court passed an order on 18-4-74. It was of the opinion that the two importnt questions for its consideration were, firstly, whether the legal representatives of the deceased decree holder can execute the decree without complying with Or.21, R.16 of CPC and secondly, whether the decree or order at eviction has become inexecutable after the death of the decree-holder. It was of the view that the above points require investigation and therefore posted the case for evidence, to 29-5-1974. Against this order, the judgment-debtor filed an appeal, ExA. 13 of 1974, in the Court of the Prl Civil Judge, Bangalore City. That appeal was allowed and the case was remanded to the Executing Court on 23-7-74. The operative portion of the said order of remand reads as follows : "In the result, the, appeal is hereby allowed and the impugned order is set aside. The lower Court is hereby directed to consider all the/grounds raised by the appellant in his application under Or.47, CPC (IA.2) after giving reasonable opportunities to bath the parties and dispose of the execution according to law. No costs in this appeal." After remand, the Executing Court passed an order on 16-9-1974 posting the case for evidence on 11-10-1974. The order-sheet of 11-10-1974 show's that the learned Advocate for the decree-holder stated that he has no evidence and the case was posted for arguments for 15-10-1974. Against this order, the judgment-debtor filed the ExA.27 of 1974 in the Court of the Prl Civil Judge, Bangalore. It was held that the appeal was not maintainable as well as that it was premature. It was observed that if the judgment-debtor had evidence in support of his contention, he could, as well move the lower Court by means of an application asking for permission to, lead evidence before hearing arguments on merits, that it is not as though no opportunity was given to the judgment-debtor in the lower Court, that it is not possible to find from the order-sheet of the lower Court as to what submission was, made by the judgment-debtor or his, learned Counsel on that day or whether the learned Counsel for the judgment debtor was absent on that day. With those observations, the appeal was dismissed. Subsequently after hearing the arguments, the Execution Court passed an order on 7-11-1974. The application filed by the judgment-debtor under S.47 CPC and the one under S.151 CPC for adducing evidence were dismissed. Against this order the judgment-debtor filed an appeal in ExA. 34 of 1974 in the Court of the Prl Civil Judge at Bangalore. The lower appellate Court came to the conclusion that the order of the Executing Court shows that arguments were heard only on the application of the judgment debtor under S.151 CPC for adducing evidence and that it cannot be said that the Executing Court has heard and disposed of the application under S.47 CPC on merits. It also observed that the Executing Court had not followed the directions given in the previous execution appeal. It was therefore, of the view that the judgment-debtor had not been afforded sufficient opportunity to adduce evidence on the application under S.47 CPC.. It, therefore, set aside the order of the trial Court d/.7-11-74 and remanded the matter for disposal on IA.2 filed under S.47 CPC keeping in view the directions given in ExA. 13 of 1974. It is against this order of remand that the present execution second appeal has been filed by the legal representatives of the deceased decree-holder.

(3.) It is urged by Mr.P.Krishnappa, appearing for the sppellanta, that the objections raised in IA.2 were, in fact considered by the Executing Court while coming to the conclusion that no evidence need be adduced His further contention is that the grounds raised by the judgment-debtor as the basis of his contention that the HRC Court had no jurisdiction to pass the order of eviction cannot be investigated by the Executing Court since they relate to facts which should have been urged in the HRC proceedings, itself and cannot be investigated by the Executing Court.