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KERALA HIGH COURT
S.S. Satheesachandran, J.
Vicar, Jerusalem Marthoma Church —Petitioner
versus
Mamman Thomas —Respondent
C.R.P. No. 498 of 2010
Decide on 4.11.2010
(ii) Tenancy—Eviction—Kerala Buildings (Lease and Rent Control) Act , 1965—Sections 6 and 11—Resistance to execution of decree for delivery of possession on the plea that Section 6 prohibits alienation of property of educational institution including transfer of possession and decree is a nullity and inexecutable—Rights and liabilities of parties are governed by lease deed—Where objection as to Jurisdiction of court to pass decree does not appear on face of record and it can be determined only examining questions raised and decided at trial or could have been raised but not done, executing court will have no jurisdiction to entertain objection as to validity of decree even on the ground of absence of jurisdiction. (Para 6)
(iii) Tenancy—Eviction—Kerala Buildings (Lease and Rent Control) Act, 1965—Sections 6 and 11—Resistance to execution of decree for delivery of possession on the plea that Section 6 prohibits alienation of property of educational institution including transfer of possession and decree is a nullity and inexecutable—Plea which is sought to be urged in execution proceedings was available to judgment debtors/defendants when they challenged decree before first appellate court, High Court and also Apex Court—Such a plea which was not taken before passing of decree cannot be allowed to be urged during execution proceedings where such objection as to lack of inherent jurisdiction of court which passed decree is not apparent on face of record, but, its determination warrant scrutiny of examination of questions raised and decided at trial—Challenge raised against executability of decree contending that it is void and inexecutable is devoid of any merit—Revision dismissed with costs. (Paras 6 to 9)
(iv) Tenancy—Eviction—Execution of eviction decree—Where subject matter in suit is of land and building, both covered by a registered lease deed, and title of lessor had been questioned by lessee leaving him with no remedy but to sue for recovery of possession, after terminating lease and a decree thereof had been passed in favour of title holder, there is no substance in challenge raised before execution court that suit before civil court for recovery of possession was barred—Judgment debtors cannot raise a plea that registered lease deed, recitals of which clearly demonstrate that it is composite lease of land and building, pertains to building in property alone, and as such decree passed not in consonance with provisions of Rent Control Act is nullity and inexecutable—Whatever challenge thereof if at all available should have been raised on trial side—Court will invalidate an order only if right remedy is sought by right person in right proceedings. (Para 6)
Result: Revision dismissed with costs.
S.S. Satheesachandran, J.—The revision is directed against the order passed by the execution Court, 1st 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 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 and 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. Yet another ground was canvassed to resist the execution contending that S.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 contention 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 Meenakshi Mil
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