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IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
Sreenivas Harish Kumar, P.N.Desai, JJ.
Smt. Shantawa, W/O Late Shankargouda Police Patil And Ors. – Appellants
Versus
Smt. Mallavva W/O Basavanneppa Mulimani And Ors. – Respondents
R.F.A. NO. 100098 of 2018
Decided On : 27-01-2021
Constitution of India,1950 - Article 14 - Karnataka Rent Control Act, 1961 – Section 21 and 31 – Civil Procedure Code,1908 - Section 151 r/w - Order 41 - Rule 33 - Suit properties - Tenants - Partition and separate possession - Seeks enhancement of her share - Decreed - Respondent No.1 has got filed an application under Section 151 r/w Order 41 Rule 33 of CPC seeking modification of share granted to her in the preliminary decree, she seeks enhancement of her share to 1/5th in suit properties - In affidavit subjoined with application, first respondent has stated that in suit O.S. No. filed by her for partition and separate possession, she was granted 4/40th share in suit properties and the preliminary decree drawn to that effect was challenged by defendants by filing R.F.A. No. before this court - Respondent initiated two execution proceedings to execute final decree - She filed Execution Case No.to take possession of ‘A’ schedule property - On she filed a memo stating that she was put in possession- In respect of schedule ‘C’ property, commissioner appointed by Court gave a report that house comprised therein was not possible to be divided - Whether one more preliminary decree can be drawn in view of judgment of Supreme Court in the case of Vineeta Sharma for enhancing share of first respondent in the suit properties
Finding of the Court:Iit must be held that order of eviction passed had become final and subsequently declaration of Section 31 of Act as void is effective only from date of order passed, right which had already accrued to landlords would not be divested though they had not taken possession in execution proceedings for reason that even second appeal preferred by tenant/ L.Rs. was dismissed and decree had become final for eviction and also it is to be noted that landlord need not seek for eviction under Section 21 of Act as he had already obtained the right to evict tenants which had become final - It is true that Order 41 Rule 33 of CPC confers appellate Court with wide powers to pass any decree or order even in respect of a party who has not appealed for doing complete justice between parties - In case on hand the first respondent cannot take shelter under this provision for seeking enhancement when she herself admits to have taken possession and received money by executing the final decree - Application filed by her is devoid of merits –
Result: Appeal is dismissed
ORDER :
SREENIVAS HARISH KUMAR, J.
ORDERS ON MEMO OF WITHDRAWAL OF THE APPEAL AND I.A. NO. 1/2020
The appellants’ counsel has filed a memo seeking permission to withdraw the appeal. The memo states that the appeal has become infructuous as final decree passed in the suit has already been executed by respondent No.1.
2. Respondent No.1 has got filed an application under Section 151 r/w Order 41 Rule 33 of CPC seeking modification of the share granted to her in the preliminary decree, she seeks enhancement of her share to 1/5th in the suit properties. In the affidavit subjoined with the application, the first respondent has stated that in the suit O.S. No. 201/2001 filed by her for partition and separate possession, she was granted 4/40th share in the suit properties and the preliminary decree drawn to that effect was challenged by the defendants by filing R.F.A. No. 3025/2010 before this court. This appeal was dismissed on 16.11.2005. Then she initiated proceedings for drawing up of final decree, i.e., F.D.P No. 15/2011; final decree was also drawn on 18.07.2017 and now this appeal is against the final decree. She has stated that in view of the judgment of the Supreme Court in Civil Appeal No. 32601 of 2018 (Vineeta Sharma V. Rakesh Sharma and others), she becomes entitled to a larger share than what was granted to her in the preliminary decree. Since this appeal is continuation of the suit, preliminary decree can be modified by this Court.
3. Sri K.S. Patil for the appellants and Sri Dinesh Kulkarni for the respondents argued on the memo as well as on the application.
4. Sri K.S. Patil submitted that the respondent initiated two execution proceedings to execute the final decree. She filed Execution Case No. 28/2018 to take possession of ‘A’ schedule property. On 21.06.2018 she filed a memo stating that she was put in possession. In respect of schedule ‘C’ property, the commissioner appointed by the Court gave a report that the house comprised therein was not possible to be divided. So far as ‘B’ schedule property is concerned, she filed Execution Petition No. 87/2017 and received an amount of Rs.4,89,900/- towards full and final satisfaction of her claim. She has initiated a miscellaneous proceeding, i.e., Misc. No. 15/2019 for determination of mesne profits. Therefore, it is his argument that the final decree has become conclusive, it cannot be reopened now. The first respondent ought to have filed cross objection, if according to her she was entitled to more share. The appellants are not interested in pursuing the appeal. The preliminary decree cannot be modified now and I.A. No. 1/2020 is misconceived.
5. Sri Dinesh Kulkarni submits that appeal is a continuation of suit. The appeal pending before the Court is against final decree. The first respondent might have executed the final decree and taken possession of ‘A’ schedule property and received an amount of Rs.4,89,900/-. This does not come in the way of modifying the preliminary decree, as, in case this appeal is allowed, the final decree will be set aside and therefore there is scope for seeking modification of the preliminary decree for enhancing the share of the first respondent in view of the ratio laid down by the Supreme Court in the case of Vineeta Sharma.
6. Sri Dinesh Kulkarni further submitted that Order 41 Rule 33 of CPC vests the Court with a wide power to grant any relief that a party is actually entitled to, there is no need to file cross objection.
7. Having heard both sides, the question to be answered now is whether one more preliminary decree can be drawn in view of the judgment of the Supreme Court in the case of Vineeta Sharma for enhancing the share of first respondent in the suit properties.
8. There is no dispute that any number of preliminary decrees can be drawn before partition is effected by metes and bounds. It is the final decree that results in actual partition by metes and bounds. But, if the final decree attains finality as is in this case, is there
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