SARAMMA SAMUEL Vs. ABRAHAM JACOB

JUDGEMENT

(1.) Aggrieved by Ext.P7 order passed in E.A. No.10/2022 in E.P. No.80/2020 in O.S. No.130/2017 of the Court of the Additional Subordinate Judge, Kottayam, (court below), the applicants in the above execution application are before this Court under Article 227 of Constitution of India. The respondents in the above application are the respondents in the original petition.

(2.) The skeletal facts, relevant for the determination of the original petition, are: the petitioners are the legal representatives of the deceased K.P.Samuel, who had filed O.S.No.130/2017 before the court below against the respondents 1 to 3, inter alia, to declare that the sale deed executed by him in favour of the respondents 1 and 2 is null and void and the rental deed executed by him in favour of the 3rd respondent was under vitiating circumstances. It was his case that, he had availed a loan from the respondents 1 and 2, who are money lenders, and he was forced to execute the sale deed in favour of respondents 1 and 2, as a security for the loan. The respondents 1 and 2 in turn sold the property to the third respondent. The third respondent filed R.C.P.No.12/2017 (R.C.P) before the Rent Controller, Changanacherry, for an order of eviction under Sec. 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (in short 'Act'). On receipt of the summons in the R.C.P., K.P.Samuel filed the suit. In the R.C.P., K.P. Samuel denied the tenant-landlord relationship between him and the third respondent. Consequently, the Rent Controller, by Ext.P1 order, relegated the third respondent to file a civil suit as provided under the second proviso to Sec. 11(1) of the Act. In the meantime, K.P.Samuel and respondents 1 to 3, entered into a compromise before the District Mediation Centre, Kottayam, and filed a memorandum of agreement as provided under Sec. 89 of the Code of Civil Procedure (in short 'the Code') in O.S. No.130/2017. The court below, by Ext.P2 decree, decreed the suit in terms with the memorandum of agreement. As K.P.Samuel got afflicted with illness, he could not comply with the conditions in Ext.P2 decree. Immediately, after the time period stipulated in Ext.P2 decree expired, the respondents 1 to 3 filed E.P.No.80/2020 on the execution side of the court below, seeking eviction of K.P.Samuel and others under him from the building. There is no specific decree for eviction of the petitioners from the building. K.P.Samuel died on 2/5/2021. The petitioners and respondents 4 and 5 were impleaded in the execution petition as the legal representatives of K.P.Samuel. The petitioners filed E.A No.3/2021 in E.P.No.80/2020 under Order XXI Rule 58 of the Code. However, the claim petition was dismissed. The petitioners challenged the order in A.S. No.30/2022 before the District Court, Kottayam, which was also dismissed. On going through Ext.P2 decree, the petitioners found that even though the title of the respondents 1 to 3 is affirmed, there is no decree of eviction drawn up by the court below. Without there being a decree, the petitioners cannot be evicted. Sec. 5 of the Specific Relief Act, stipulates the manner in which an immovable property can be recovered. The usage of word 'due process of law' in the agreement to Ext.P2 is to be interpreted that the parties meant that an independent suit is to be filed for eviction. Sec. 51 of the Code permits execution only if there is a specific decree. Accordingly, the petitioners filed E.A.No.10/2022 (Ext.P5) under Sec. 47 of the Code, challenging the executability of Ext.P2. The same was opposed by the respondents 1 to 3. The court below, without considering Ext.P5 application in its proper perspective, by the impugned Ext.P7 order, has dismissed Ext.P5 application. Ext.P7 is per se illegal and arbitrary and is liable to be set aside. Hence, the original petition.

(3.) The respondents 1 to 3 have filed a counter affidavit through the first respondent denying the allegations in the original petition. They have contended that K.P.Samuel had validly executed the sale deed in favour of the respondents 1 and 2, who in turn executed a sale deed in favour of the third respondent. Thereafter, K.P. Samuel and the third respondent entered into a rent agreement. After the denial of title by K.P.Samuel, the parties entered into a compromise in the suit filed by K.P.Samuel. K.P.Samuel had given up all his contentions in the suit and agreed to pay the respondents 1 to 3 an amount of Rs.42,50,000.00 on or before 20/8/2020 , if not the sale deed would be valid and K.P. Samuel would vacate from the building within one month from 20/8/2020. It was on the failure of K.P.Samuel to vacate the building, the respondents had filed the execution petition to execute Ext.P2 decree. After K.P.Samuel died, the petitioners and respondents 4 and 5 were impleaded in the execution petition. Then, they filed E.A No.3/2021 under Order XXI Rule 58 of the Code. The application was dismissed by the court below by Ext.R1(c) and confirmed in appeal by Ext.R1(h) judgment. After that, the petitioners filed the present application, which has been rightly dismissed by the court below by the impugned order. There are no grounds warranting interference by this Court under Article 227 of the Constitution of India. The original petition may be dismissed.