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2010 Supreme(Ker) 636

High Court of Kerala
THE HONOURABLE MR. JUSTICE S.S. SATHEESACHANDRAN
The Vicar
Versus
Mamman Thomas & Others
CRP.No. 498 of 2010 (A)
Decided o : 04-11-2010

Advocates Appeared:For the Petitioner:S. Sreekumar, Advocate. For the Respondents:
V. Chitambaresh (Sr.), Advocate.

Headnote:

Kerala Buildings (Lease and Rent Control) Act - S.11 - Challenge raised by the revision petitioner with another, the judgment debtors, impeaching the executability of a decree for recovery of possession. Revision petitioner is the 2nd judgment debtor in the above execution petition. The decree executed by respondents 1 to 4/the decree holders, was one granting recovery of possession over a property comprising a building, declaring their title over the same. Executability of that decree was challenged by the judgment debtors, the revision petitioner and the 5th respondent herein, contending that the building covered by the subject matter fall within the ambit of the Kerala Buildings (Lease and Rent Control) Act and they are liable to be evicted only on satisfaction of any of the grounds under S.11 of the above Act, and no eviction is allowable on the basis of the decree for recovery of possession passed by the civil court. An objection was also raised by them that since a School is being conducted in the building involved, the judgment debtors are protected from eviction under S.11(11) of the above Act - Held, it is evident from the copy of the judgment rendered in the second appeal that there was in fact a request from the counsel for the appellants seeking six months' time to vacate the suit property on the plea that the appellants are running an educational institution. It was under those circumstances, after ascertaining the stand of the decree holders/plaintiffs, this Court had granted such extension subject to an undertaking and compliance of such other conditions imposed while disposing of the second appeal confirming the decrees of the courts below. The fact that no such undertaking was given as directed by the court, does not absolve the appellants/judgment debtors from blame when such an order waspassed on their request canvassed setting forth the ground of continuance of the educational institution in the suit property to have the indulgence of this Court for such extension of time to surrender vacant possession. What transpired later would indicate the appellants had no intention to surrender and the request for such extension made was made, to say the least, without any bona fides. Nothing more required to be stated thereof - Revision dismissed

Judgment :

The revision is directed against the order passed by the execution court, Ist Additional Munsiff Court, Thiruvananthapuram, in E.P.No.379 of 2009 in O.S.No.486 of 2005 negativing the challenge raised by the revision petitioner with another, the judgment debtors, impeaching the executability of a decree for recovery of possession. Revision petitioner is the 2nd judgment debtor in the above execution petition. The decree executed by respondents 1 to 4/the decree holders, was one granting recovery of possession over a property comprising a building, declaring their title over the same. Executability of that decree was challenged by the judgment debtors, the revision petitioner and the 5th respondent herein, contending that the building covered by the subject matter fall within the ambit of the Kerala Buildings (Lease and Rent Control) Act (Act 2 of 1965) and they are liable to be evicted only on satisfaction of any of the grounds under Section 11 of the above Act, and no eviction is allowable on the basis of the decree for recovery of possession passed by the civil court. An objection was also raised by them that since a School is being conducted in the building involved, the judgment debtors are protected from eviction under Section 11 (11) of the above Act. Yet another ground was canvavssed to resist the execution contending that Section 6 of the Kerala Education Act prohibits alienation of the property of an educational institution including transfer of possession and, thus, the decree is a nullity and inexecutable. The execution court, repelling all the aforesaid objections raised by the judgment debtors, ordered for delivery of the property to the decree holders under the impugned order. 2. Notice given, the respondents 1 to 4/the decree holders have entered appearance. A counter affidavit was filed by the 1st respondent traversing the various grounds raised by the revision petitioners/judgment debtors to impeach the order of the execution court.

3. I heard the counsel on both sides. Before adverting to the submissions made by the counsel on both sides over the propriety, correctness and legality of the order of the execution court, the undisputed facts in the case deserve to be taken note of. The decree schedule property, having an extent of 13.5 cents, situated in Kawdiar village of Thiruvananthapurm Corporation comprise of a building, and, in which, an aided school is being conducted by the judgment debtors, obtaining a lease over the property from the predecessor of the decree holders. That registered lease deed executed in the year 1948 was exhibited as A5 on the trial side. The demand for surrender and vacant possession of the leasehold not heeded to by the lessees/judgment debtors, and resisting it even by disputing the title of the lessors, the suit was instituted for declaration of title and recovery of possession. Though the judgment debtors contended that even before the execution of A5 lease deed, they had been conducting the School and the deed was executed only for getting recognition for the School from the State Government, it has been concurrently held by all the courts that the rights and liabilities of the parties are governed by A5 lease deed. After the dismissal of the second appeal filed by the defendants/judgment debtors, they pursued the challenges filing a Special Leave Petition before the Apex Court, and that was also turned down negativing all their challenges against the decree granted in favour of the plaintiffs/decree holders. That decree for recovery of possession when proceeded with in execution, was resisted with the contentions as aforesaid. The objection of the judgment debtors to the executability of the decree having been turned down by the execution court, one among the judgment debtors/the 2nd judgment debtor has filed this revision. 4. The learned counsel for the revision petitioner relying on Appukuttan v. Vasu (1978 KLT 776), M/s.East India Corporation Ltd. v. Shree Meenaks



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