VELAYUDHAN Vs. RAICHAL VARGHESE

JUDGEMENT

(1.) The tenant in B.R.C.O.P. No. 50 of 1980 are the petitioners. The application for eviction was made in 1970. The matter came to this Court thrice in three civil revision petitions thanks to the procedural law of the land. The ground on which eviction was sought was the one under S.11(4)(iv)of the Kerala Buildings (Lease and Rent Control) Act, Act II of 1965. The respondents had produced the necessary plan from the Kottayam Municipality for reconstruction of the building after demolition of the existing structures. By the time execution was laid, a notification under S.33A of the Town Planning Act came into force making it obligatory for new buildings to leave a space of 40ft vacant in the road side. In view of this notification, reconstruction of the building as per the original plan on the same site became impossible. Therefore E. A No. 809 of 1977 was filed by the petitioner to stay execution of the decree passed in the Rent Control petition on the ground that the order of eviction for reconstruction was rendered unexecutable on account of subsequent events. The execution Court dismissed the application which order was confirmed by the District Judge. Hence this revision.

(2.) The submission made before me by the counsel for the petitioner is that in allowing execution to proceed the execution Court will be going behind the decree which is not permissible and that unless the Court of the Rent Controller modifies the order after the respondents produce a new plan, the order cannot be executed.

(3.) The petitioner's counsel made a forceful plea, with reference to Supreme Court cases, that to execute the decree in its present form would be going behind the decree which was not permissible. It was submitted that by executing the decree as it now stands, the execution Court will be denying the judgment debtor a valuable right granted to him under the provisos to S.11(4)(iv) of the Act. The revisional Court should have remanded the case for disposal directing the Rent Control Court or the execution Court to take note of the changed circumstances and order eviction only as per a revised plan. The revisional Court agreed that under the changed circumstances it would not be possible for the respondents to reconstruct the building at the original site. He observed that though the new rule made it obligatory on the part of the person reconstructing the building to leave sufficient width near the road that did not mean that reconstruction was impossible. According to the petitioner's counsel any modification with the direction originally made can be made only by the Rent Controller and not by the execution court.