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2008 Supreme(Kar) 657

High Court Of Karnataka
B.V.Nagarathna J.
S S M And Sons - Appellant
Versus
Nanjamma – Respondent
Decided On : Oct 15,2008

Advocates Appeared:
A.Krishna Bhat, H.K.Shetty, K.K.Vasant

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Order 21, Rules 97 to 103: [Mrs. B.V. Nagarathna, J] Execution of eviction decree-Resistance - Application under Order 21, Rule 97 - Whether maintainable by one joint decree holder against another? - Petitioner on earlier occasion applied for her impleadment in execution petition being daughter of deceased joint decree holder -However later on she objected execution saying that she is having an independent right by virtue of being in possession of scheduled property and had inducted tenants thereon -No evidence laid by her to show that she was possessing scheduled property in her own right -Petitioner claiming herself to be joint decree holder at one place and independent person on another - Held, Application under Order 21, Rule 97 by her as also by tenants claiming through her is not maintainable. Question of deciding same by recording evidence does not arise.

JUDGMENT

( 1. ) THESE three revision petitions are filed by the applicants who had filed I. A. Nos. X, XI and XVI before the Court below, being aggrieved by the dismissal of the same by order dated 11-12-2001 in Execution Petition No. 8611/1993.

( 2. ) THE relevant facts of the case are that one Smt. Nanjamma and her son Sri Rajanna who are since deceased and Rajanna being represented by his legal representatives, had filed an eviction petition in HRC No. 2844/ 1981 against the tenants in respect of premises bearing Nos. 100 and 102 which shall hereinafter be referred to as the 'schedule premises' under Section 21 (l) (a), (f), (h) and (p) of the karnataka Rent Control Act, 1961 as it then existed, before the Court of Small Causes at bangalore. By the order dated 28-3-1987, the said eviction petition was allowed under Section 21 (l) (h) directing the tenants to vacate the premises within six months from the date of the order. Being aggrieved by the said order, CRP No. 4321/1987 and CRP No. 1262/ 1987 was preferred by the tenants. This Court, by a common order dated 3-9-1992, dismissed both the revision petitions granting one year's time to the tenants from the date of the order to vacate and deliver vacant possession of the premises to the landlords viz., Nanjamma and rajanna. During the pendency of the said revision petitions, Rajanna died on 30-10-1987 and his legal representatives were brought on record.

Subsequently, on 8-10-1993, execution petition was filed by only the legal representatives of Rajanna in Execution Petition No. 8611/1993. It is significant that though nanjamma was shown as a petitioner in the execution petition, she had not signed the same and therefore had not joined the legal representatives of Rajanna in preferring the said execution petition. During the pendency of the said execution petition, an application was filed by one Maganlal under Order XXI, rules 97 to 99, C. P. C. (I. A. No. 2) contending that he is the son of one of the tenants in respect of the scheduled premises. During the pendency of the said application, Nanjamma died on 28-8-1996. I. A. No. 2 came to be dismissed by an order dated 16-11-1996. There was no challenge made to the said order and hence, the same has attained finality.

( 3. ) SUBSEQUENTLY, I. A. No. 8 was filed by the petitioner, G. H. Premakumari in H. R. R. P. No. 21/2002 under Section 151 of C. P. C. seeking to implead herself as one of the decree-holders on the ground that she was one of the legal representatives of Nanjamma and also a legatee under the will executed by nanjamma dated 21-1-1987. The legal representative of Rajanna who is one of the joint decree-holders in the eviction petition objected to the said application and the Court below dismissed the said application.

( 4. ) BEING aggrieved by the said order passed by the Executing Court, C. R. P. No. 689/1997 was filed before this Court which was, however, dismissed by order dated 4-2-1997 confirming the order passed by the trial Court.

When matters stood thus, I. A. Nos. X and XI were filed by the petitioners in HRRP no. 39/2002 and HRRP No. 40/2002 under order XXI, Rule 97, C. P. C. raising objections to the execution by contending that they were tenants who are inducted into the scheduled premises by the petitioner in HRRP No. 21/2002.

( 5. ) I. A. No. XVI was filed by the petitioner in HRRP No. 21/2002 under Order xxi, Rules 97 to 101, C. P. C. raising objections to the execution petition. By an order dated 11-12-2001, the three applications were dismissed by the Court below. Being aggrieved by the said order, the applicant in I. A. No. XVI before the Court below has preferred HRRP No. 21/2002 and the tenants who are the applicants in I. A. Nos. X and XI before the Court below have preferred HRRP nos. 39/2002 and 40/2002 respectively.

( 6. ) SINCE the petitioners are aggrieved by a common order dated 11-12-2001, all the revision petitions have been connected and heard together and disposed of by this order.



















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