GURUPUTRAPPA PHAKIRAPPA HALAKATTI Vs. HASHIMBI

JUDGEMENT

(1.) This appeal arises out of proceedings taken out to execute an order of eviction made in favour of the respondent in HRC.30/1965 on the file of the principal Munsiff, Bijapur, dt.31-5-1972. That order, inter alia, directed the present petitioner who was the respondent therein to pay to the landlady or deposit in Court a sum of Rs. 253-74 plus Rs.25 within one month from the date of the order. It further directed that on, the failure, the petitioner shall vaca,te the premises and put the landlady in possession of the suit premises. On the ground that no such deppsit had been made as required in terms of the order; Respondent took out execution, proceedings. The application was contested. It was contended that the deposit had been made on 1-6-1972 and the execution application was, therefore, not maintainable. A further contention had been raised that in spite of attempts to pay the amount to tthe decree-holder, she had evaded receiving the amount. The executing Court on a construction, of the decree held tha,t the amount had to be deposited on 30-6-1972 and therefore there was no compliance with the terms thereof. It also held that there was no proof that the decree-holder had evaded receiving payment. Accordingly, execution proceedings were directed to proceed. The judgment-debtor preferred an appeal against that order and the order of the trial Court was confirmed.

(2.) In this appeal, it is contended that the decree made was without jurisdiction and, therefore, a nullity and execution petition should have been dismissed. The argument is that under S.21(2) (b) of the Karnataka Rent Control Act, 1961, a date should have been fixed for payment of the arrears and a peremptory order directing eviction even before that day was without jurisdiction. For the respondent it is contended that the Court had jurisdiction to pass an order of eviction in terms it did and the order cannot be said to be without jurisdiction or a nullity and even if the order was not in accordance with the provisions of S. 21 (2) (b) of the Act, it is only an error and the decree was not one without jurisdiction and its validity cannot be questioned in execution proceedings and the remedy of the judgment-debtor was only to have the decree corrected in appeal or otherwise.

(3.) In support of the contention urged for the petitioner, an unreported decision in Ex-S.A. 31/1973 dt.5-7-1973, Ex.S.A.31|73. is relied upon. That appeal also arose out' of execution proceedings. The decree provided for making payment and deposit into Court a sum of money on or before 20th Octr, 1967 and had further provided that on default the petitioner was entitled to recovery of possession of a premises. The learned Judge held that the portion of the decree in regard to the making of the deposit was a good and valid order, but that the further direction that if the tenant committed default in the payment of the arrears of rent on or before 20th Octr, 1967, he should deliver possession of the premises,, was "premature and without jurisdiction".