DINESH KUMAR Vs. EXECUTIVE OFFICER, KUKKE SRI

JUDGEMENT

(1.) This second appeal is preferred against the judgment and decree dated 16th April, 2016 made in R. A.No.2/2016 confirming the order dated 16th Nov., 2015 made in CMC No. 13/2014 in Ex.P.No.31/2008 dismissing the application filed under Order 21, Rules 97, 101 and 103 read with Sec. 151 of CPC.

(2.) The subject-matter of the dispute in this appeal is in respect of shop premises bearing Door No.II-399 (old No. 11-316) of Subramanya Kasaba Village, Sullia Taluk. The said property belonged to Sree Kukke Subramanya Temple, Kukke. Originally, the said premises was leased in favour of the second respondent herein. He was carrying on the business in the said shop premises. The authorities of Subramanya Temple initiated proceedings for eviction of the said tenant and filed ejectment suit in O.S.No.37/2002. The said suit was contested by the tenant. Consequently, the said suit was decreed on 29-06-2005 directing the tenant to deliver the vacant possession of the premises to the plaintiff. Aggrieved by the said judgment and decree, the tenant preferred R.A.No.81/2005. The said appeal after contest, came to be dismissed by the judgment and decree dated 4-8-2007. Being aggrieved by the same, the tenant preferred R.S. A.No.27/ 2007 before this Court, which also came to be dismissed on 11-03-2009. On the basis of the said order, the plaintiff initiated execution proceedings in Ex.P.No.31/2008 for recovery of possession. In the said proceedings, father of the appellant herein one Gangadhar filed CMC No. 1/2010 under Order 21, Rule 97 contending that he is in possession of the shop premises in question. He has obtained the license from the Panchayath to carry on the business and he is carrying on the business for the last 20 years. He has got an independent right over the property and he contended that the decree obtained by the decree-holder cannot be executed as the said Gangadhar is in possession of the premises. The Executing Court after examining the matter, dismissed CMC No. 1/2010 filed by the objector on 24-02-2011. Being aggrieved by the said order, the said Gangadhar preferred R.A.No. 18/2011 before the Civil Judge (Sr.Dn.) and JMFC, Puttur. The said appeal was dismissed on 22-09-2011. Being aggrieved by the said order, he preferred RSA No.2372/2011 before this Court challenging the said order on various grounds. This Court dismissed the said RSA on 22-08-2013. After dismissal of the said RSA for the second time, son of the said Gangadhar made one more attempt and he filed CMC No. 13/2014 in Ex.P. No.31/2008 contending that he is in possession of the premises and claiming independent right as a tenant. However, he was not made party in the earlier proceedings. Hence, he filed CMC objecting the execution of the said decree. The respondent filed detailed objections to the said CMC and contended that filing case after case amounts to abusing the process of court. Earlier tenant as well as the appellant have already lost the case upto the High Court. Hence, the appellant cannot maintain the application.

(3.) The trial Court, framed the following issues: