V K RAMA SETTY Vs. A GOPINATH

JUDGEMENT

(1.) THE sole question which requires to be considered by this Full Bench is, as to whether once a person, other than the judgment-debtor, is dispossessed of an immoveable property by the holder of a decree for possession of such properties, having made an application to the executing Court against such dispossession based on his right, title or interest therein, can file a separate suit as well for the said very relief despite the prohibition contained in Order XXI, Rule 101 of the Code of Civil Procedure. (in short the 'c. P. C. ')?

(2.) BEFORE entering into the controversy on the legal aspect let me first set out the bedrock of the settled facts. The petitioner in C. R. P. 3863 of 1991 is the owner of the double storied house property bearing No. 7, Thimmaraya Shetty Lane, Nagarathpet Cross, Bangalore-2. He had filed an eviction petition being H. R. C. 307/1982 under the provisions of the Karnataka Rent Control Act, 1961 (hereinafter the 'act') on the file of the Court of Small Causes, Bangalore in respect of the 1st floor of the said house against one Krishna Murthy being the tenant therein. In the said proceedings an order of eviction was passed on 20-3-1982. Accordingly, he filed Ex. Case No. 2203/82 and obtained delivery of possession of the said first floor on 13-8-1982.

(3.) THE claim laid by the respondent in the said C. R. P. 3863/91, namely V. K. Ramasetty, is that he had acquired the possession of the first floor of the house in question pursuant to an oral agreement of tenancy entered into by him with the petitioner-landlord. Accordingly, he filed an application on 18-8-1982 under Order 21, Rule 99 read with Section 144, C. P. C. in the said execution proceedings seeking restitution of possession claiming that he was in possession of the suit premises in his own right as a tenant and he being not a party to the eviction petition, his dispossession was illegal and impermissible.