SYAMLAL Vs. PHILIP THOMAS

JUDGEMENT

(1.) The petitioners are strangers to the decree who have offered resistance to the execution of the decree obtained by the decree holder against the judgment debtor. In R.C.P.No.103/2018, an eviction order was passed by the Rent Control Court against the tenant of the building. The tenant defaulted paying the rent in time. Hence an eviction order was passed by the Rent Control Court under Section 12 of the Kerala Buildings (Lease and Rent Control) Act, 1965. Evidently, the eviction order was passed for non-payment of admitted arrears of rent within the permissible time in accordance with Section 12(3) of the Act. The tenant is a huge defaulter. The total rent due from the tenant exceeds Rs.12,15,000/-.

(2.) The case of the appellants is that they being inmates of a hostel and boarding house, they cannot be evicted except in accordance with the due process of law. The executing court dismissed the obstruction raised by the appellants. An appeal was taken before the first appellate court. It was also dismissed confirming the order of the executing court. Relying on Prabhakaran v. Kuttian Prakashan , 1985 KerLT 225, Arjunan Achary v. Thankamma,1988 2 KerLT 857 , Augustine & Company v. Damodaran,1991 2 KLTSN 16 , Devassia Joseph v. Vysya Bank Ltd. , 1990 2 KerLT 339 and Moideen v. Kadeesa Umma,1991 1 KLTSN 57 the first appellate court held that an obstructor who is not a party to the suit cannot object to the delivery in the execution court before delivery is effected. Hence, the first appellate court held that the remedy of an obstructor is to file a suit before delivery or file an application under Rule 99 of Order XXI C.P.C. for re-delivery of the property.

(3.) Heard the learned counsel for the appellants and the learned counsel for the respondents.