This appeal filed is by the appellant (who is

objector before the Trial Court) under Section 96 of

CPC for setting aside the order of rejection of the

application filed under order XXI Rule 97 of CPC by

5

Small

Causes

Court,

Mysuru

in

execution

No.147/2018.

2. Heard the arguments of learned counsel for

appellant and counsel for the respondents.

3. The appellant was an objector and the

respondent Nos.1 to 5 were the decree holders and

other respondents were judgment debtors. The ranks

of the parties are retained as per the Trial Court for

the sake of convenience.

4. The case of the appellant before the Trial

Court is that the appellant father was Krishna Nayar

who had entered into lease agreement with one

Pushparaj in 1978. Ever since, they are residing in

the execution petition schedule property since last 45

years. Recently they came to know the decree

holders who file execution petition against judgment

debtors were preparing for taking over the possession

6

by eviction, without making the appellant as party.

Hence the appellant filed application before the Trial

Court as objector under order XXI rule 97 of CPC, but

the Trial Court without making any enquiry dismissed

the application with cost. Being aggrieved by the

same, the objector is before this court.

5. Learned counsel for the appellant has

vehemently contended, since from 45 years the

appellant is in possession of the property, without

making them as party, suit filed by the decree holder

against one Ramu and got the decree for eviction.

Subsequently, the execution petition was filed, at that

time it came to the knowledge of the appellant.

Hence, the Trial Court ought to have made an enquiry

for the purpose of deciding the contention of the

appellant, but without doing so, application came to

be rejected which is not correct and it is against the

7

law. In support of his argument he has relied upon

the judgments of the Hon'ble Supreme Court as

under:

(1) (2015) 5 SCC 588 in case of Maya Devi

Vs. Lalta Prasad.

(2) (2002) 1 SCC 662 in case of N.S.

Narayana Sarma and Ors Vs Godstone exports

(P) Ltd., and Ors.

(3) (1998) 3 SCC 723 in case of Silverline

Forum Pvt., Ltd., Vs Rajiv Trust and Anr.

6. Per contra, learned counsel for respondent

seriously objected the appeal and contended that the

tenant was the Ramu and suit was filed against him.

The tenancy was terminated by issuing notice, which

was served on him. He has taken the contention

regarding the father of the appellant was occupied in

the petition schedule property. The same was

8

considered by the Trial Court and decreed the suit.

Therefore, there is no necessary for the trial court to

hold an enquiry. The issue of sub tenancy has been

already decided by Trial Court. The learned counsel

has supported the order of the Trial Court, hence

prayed for dismissing the appeal.

7. Having heard the arguments, perused the

records, the respondent Nos.1 to 5 were the decree

holder who filed suit against other respondents who

are the legal heirs of one Ramu for eviction. The

decree passed by the Trial Court judgment reveals the

said Ramu has taken the contention that one Krishna

Nayar is in occupation. But the Trial Court though

passed the judgment holding that the Ramu was the

tenant and it is also not in dispute. But the appellant

contention is that they are tenant, under one

Pushparaj. The said Pushparaj, how he has entered

9

into rental agreement with the appellant? and how the

Trial court held that the Ramu was in occupation? If

somebody else was in occupation of place as tenant,

the notice said to be served on Ramu, but address

was not that of the suit schedule premises, that the

Ramu was actually not stayed in the said house.

Whether the Ramu was actually tenant and who was

in actual possession? has not been decided. However,

the appellant's contention is that they are residing in

the said premises for more than 45 years and

definitely the plaintiff might have had the knowledge

about the oc