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2014 Supreme(Ker) 340

High Court of Kerala
K.T. SANKARAN & A. MUHAMED MUSTAQUE, JJ.
M. Fathimath Naseera
Versus
T.M. Aboobacker Haji
O.P. (R.C.) Nos. 74, 75 & 76 of 2014
Decided on : 24-06-2014

Advocates appeared:
For the Petitioner:T. Madhu, C.R. Saradamani, Advocates.

Headnote:

Kerala Buildings (Lease and Rent Control) Act, 1965 - Section 14 - Civil Procedure Code, 1908 - Section 47 - Execution proceeding - Decree of - Inexecutability of - Held, Defences which are available in an execution proceeding to execute a decree of the Civil Court would be available in an execution proceeding to execute the order passed by the Rent Control Court, to the extent the circumstances warrant - Inexecutability of the decree cannot be inferred on a mere contention that the decree is inexecutable

Judgment :

K.T. Sankaran, J.

1. Since the questions involved in these Original Petitions are common and since the parties are related to each other (petitioner in O.P.(R.C.) No.74 of 2014 being the wife of the petitioner in O.P.(R.C.) Nos.75 and 76 of 2014), we dispose of these Original Petitions by a common judgment. The respondents filed three Rent Control Petitions, namely, R.C.P.Nos.5, 6 and 7 of 2013, on the file of the Rent Control Court, Kasaragod, against the respective tenants under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act. A compromise petition was filed in the Rent Control Petitions. Clause (3) of the compromise petition in R.C.P.No.6 of 2013 reads as follows :

“3. The respondent admits that the rent payable from February 2012 is in arrears and he has no objection for passing an order of eviction under Section 11(2)(b) of Kerala Buildings (Lease and Rent Control) Act 2 of 1965. She prays for five months period for payment of arrears of rent as contemplated under Section 11(2)(c) of the Act and the petitioner has no objection for the same. If arrears of rent is not paid within five months the petitioner is entitled to execute the order of eviction.”

Similar compromise petitions were filed in R.C.P.Nos.5 and 7 of 2013 as well.

2. Since the tenants failed to pay the arrears of rent within the stipulated time, the landlords filed Execution Petitions. Since two years had not elapsed from the date of the order of eviction, the executing court dispensed with notice to the tenants and ordered delivery of the property. When the Amin attempted to deliver the decree schedule property on 21.1.2014, the tenants obstructed delivery.

3. The tenants filed O.P.(R.C.)Nos.10, 11 and 12 of 2014, challenging the order dated 10.1.2014 passed by the executing court ordering delivery. Those Original Petitions were dismissed by this Court on 29.1.2014.

4. Thereafter, the tenants filed applications before the executing court to review the order dated 10.1.2014 passed by the executing court. The executing court dismissed the Review Petitions, which are under challenge in these Original Petitions.

5. In the affidavit accompanying the Review Petitions, the tenants contended that no executable order was passed by the Rent Control Court. They contended that there was no declaration of rights of parties and there was no direction to the tenants to handover possession of the property to the landlords. As per the decree, there is no order or direction enabling the landlords to get vacant possession of the building. It was contended that there is no valid decree in the cases, which is capable of being executed. It was submitted that the order for delivery dated 10.1.2014 is liable to be reviewed on account of error apparent on the face of the record.

6. In each of the Rent Control Petitions, the Rent Control Court passed similar orders. For the sake of convenience, the order in R.C.P.No.6 of 2013 is extracted below :

“This is a petition filed under Section 11(2)(b) of the Kerala Buildings (Lease and Rent Control) Act, 1965.

Compromise recorded vide order on I.A. 954/2013.

In the result, an order is passed in terms of the compromise as follows :

1. Petition is allowed.

2. Respondent is directed to put the landlord in the possession of the petition A schedule buildings immediately on the expiry of 5 months from the date of this order until and unless the respondent invokes Section 11(2)(c) of the Act and gets the eviction order vacated.”

7. The schedule of property was also appended to the order of the Rent Control Court.

8. Section 11(1) of the Kerala Buildings (Lease and Rent Control) Act provides that notwithstanding anything to the contrary contained any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of the Act. Section 11 (2)(b) provides for passing an order of eviction on the ground of arrears of rent. Every order made




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