MURTHY C Vs. M R GOPAL ACHARI

JUDGEMENT

(1.) THE above revision petition has been filed under Art. 227 of the Constitution of India, challenging the order of the Court below dated 5.8.1993, made in E.A. No. 27 of 1990 in E.P. No. 2 of 1990 in R.C.O.P. No. 28 of 1982, rejecting E.A. No. 27 of 1990.

(2.) THERE is no controversy and it is unnecessary for me to go into the details of the past history except referring to the fact that the petitioners, the tenants, suffered an order of eviction and that order of eviction came to be sustained in proceedings pursued by the petitioners thereafter upto the highest Court in the country, the Supreme Court of India and that an execution petition has been filed thereafter. At that stage, the tenant, the petitioners before this Court, have filed an application contending that there is a mistake in the identity and extent of the property ordered to be evicted and surrendered and the one from which the petitioners are sought to be dispossessed and that the petitioners have effected certain improvements in the year 1980 and the value of such improvements have to be paid before executing the order of eviction by dispossession. The said application was opposed by the landlord. Even before the Court below the decision in Vedhanayagam v. Janaki Ammal (93 L.W. 324) and Mohamed Ali Sahib, A.V. v. Naina Mohamed Maracoir (95 L.W. 327) were pressed into service. The Court below, in spite of the same, has come to the conclusion that the objections raised are pure afterthoughts intended to drag on the proceedings further and to avoid eviction. While coming to such a conclusion, the Court below has also said that the application filed by the petitioners herein cannot be maintained for the reasons that basis of claims have their origin to events prior to the eviction petitions but not raised or agitated in those proceedings and hence, the above revision.

(3.) I am afraid I cannot countenance the claim of the learned senior Counsel. The decision reported in 93 L.W. 324 ( supra ) relied upon, in my view, has to be confined to the nature of the objections raised at the stage of execution in that particular case. That was a Case where the objections were raised with reference to the damage caused to the property while effecting delivery and such objections could not have been raised earlier in the eviction proceedings themselves filed under the Act. It is only in that context the Court below, when it made a summary disposal of the application, this Court disapproved the view expressed by the Court below. So far as the case on hand is concerned, if there is any misdescription and mistaken identity or difference in extent of the property in respect of which eviction was sought for, it should have been taken even at the initial stage in the eviction proceedings themselves. Grievance has been raised in a different form earlier but considered and rejected in the eviction proceedings. Equally so is the claim or objection raised with reference to the entitlement of the petitioners herein for the alleged improvements said to have been made to the property in the year 1980 and the value thereof. Such an objection also appears to have been raised in the earlier eviction proceedings but the same were considered and rejected on merits by considering in detail the evidence on record and also taking into account the withdrawal and dismissal of a suit O.S. No. 1165 of 1981 before the Civil Court filed by the tenants themselves and that therefore, the same cannot be once over again allowed to be resurrected and urged at this stage. It is not open to the tenant to be either indifferent, or not to raise a particular point in a particular manner or stake all claims which should otherwise have been taken and at the appropriate stage and got considered at the stage of eviction proceedings themselves under the Act and after an unsuccessful challenge of the order of eviction up to the highest forum available, turn round at the stage of execution of the eviction orders and re-agitate stale and controversial claims at the stage of execution under the pretext of making an application, invoking the provisions of S. 47 of the Code of Civil Procedure. The Court below, while rejecting the application as not maintainable, must be considered to have expressed the said view with reference to the nature of the objections raised and not as a general rule that no objection could be raised by means of an application under S.47 of the Code of Civil Procedure at the appropriate stage. The reasons assigned in paragraph 5 of the order amply make this position clear. The nature of objection is vitally relevant for considering the issue as to whether such objections can be gone into at the stage of execution of an order of eviction, which, as already noticed, has been affirmed by the highest Court of the land. In that view of the matter, I do not see any infirmity in law in the order of the Court below. The application by the petitioner lacks bona fides and is nothing but sheer abuse of process of Court.