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2023 Supreme(Online)(KER) 19367
HIGH COURT OF KERALA
P. B. Suresh Kumar, SOPHY THOMAS, JJ
POTTI PURAYIL SHARAFUNNISSA
– Appellant
Versus
KANDAMBATH ACHAMVEETTIL SATHYA BHAMA – Respondent
OP (RC) 219 2022
P.M.UNNI NAMBOODIRI, ANISH JOSE ANTONY, ANJU MOHAN(K/916-D/2000)
An unrecorded arrangement regarding eviction is not recognized under execution proceedings; prior eviction orders remain enforceable until certified adjustments are made.
Headnote:
Execution - Eviction Order - Kerala Buildings (Lease and Rent Control) Act, 1965 - Sections 11(3), 14; Code of Civil Procedure - Order 21 Rule 2 - The court held that a previous adjustment between parties regarding the eviction order must be certified to be recognized for execution, and failure to do so renders the execution petition maintainable.
Fact of the Case:
The petitioner resisted the execution of an eviction order, claiming a new arrangement was made to extend her tenancy for five years, which should preclude execution of the order of eviction.
Finding of the Court:
The court found the execution petition maintainable, stating that any adjustment made must be recorded as per the Code of Civil Procedure rules, failing which it cannot be recognized in execution proceedings.
Issues: Whether a fresh arrangement between parties precludes the maintainability of the execution petition based on a previous eviction order.
Ratio Decidendi: Payments or arrangements that haven’t been certified under Order 21 Rule 2 of the Code cannot be considered by the executing court. The previous eviction order possesses finality binding both parties despite the new arrangement.
Final Decision: The original petition is dismissed.
JUDGMENT
P.B.Suresh Kumar, J.
The petitioner in this original petition is the sole respondent in E.P.No.67 of 2019 before the Munsiff Court, Payyannur. The execution petition was instituted by the respondent herein to execute an order of eviction obtained by her against the petitioner, in R.C.P.No.35 of 2013.
2. The order of eviction in R.C.P. No.35 of 2013 is one obtained by the respondent against the petitioner under the Kerala Buildings (Lease and Rent Control) Act, 1965 (the Act) for eviction of a premises on 30.10.2014. Though an application has been filed by the respondent as E.P.No.58 of 2014 to execute the order of eviction in R.C.P.No.35 of 2013 earlier, the same was not pressed by her, as there was an arrangement between the parties to permit the petitioner to occupy the premises for five more years from 30.10.2014 on a higher rent. E.P.No.67 of 2019 was filed by the respondent on the expiry of the said term of five years for execution of the order in R.C.P.No.35 of 2013. The petitioner filed objections to the execution petition contending that inasmuch as a fresh arrangement has been arrived at between the parties after the order of eviction, the eviction petition is not maintainable. It was also contended by the petitioner in her objections that inasmuch as the order of eviction was one obtained under Section 11 (3) of the Act for the bona fide need of the respondent, the same cannot be executed after a period of five years. The Execution Court repelled the contentions raised by the petitioner and ordered delivery of the premises, as per Ext.P9 order. Ext.P9 order is under challenge in this original petition.
3. Heard the learned counsel for the petitioner as also the learned counsel for the respondent.
4. The order impugned in this proceedings being one passed in execution under Section 14 of the Act, a revision would lie against the said order before the court to which appeals ordinarily lie against the decisions of the court which passed the order. The original petition instituted against the said order invoking Article 227 of the Constitution of India, in the circumstances, is not maintainable. Nevertheless, insofar as this Court has entertained the original petition and passed interim orders in the matter, we propose to deal with the contentions raised by the petitioner on merits in this proceedings itself.
5. There is no dispute in this case as to the relevant facts. The respondent admits that after the order of eviction, the parties have entered into Ext.P4 agreement, in terms of which she permitted the petitioner to occupy the premises for five more years from 30.10.2014 on a higher rent, and the earlier petition filed by her to execute the order of eviction, viz, E.P.No.58 of 2014 was consequently not pressed. According to the respondent, the present execution petition instituted after the period specified in Ext.P4 agreement is perfectly maintainable, whereas the petitioner contends that in the light of the subsequent arrangement, the execution petition is not maintainable.
6. Sub-rule (1) of Rule 2 of Order 21 of the Code of Civil Procedure (the Code) provides that where a decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree holder, the decree holder shall certify such payment or adjustment to the court whose duty it is to execute the decree and the Court shall record the same accordingly. Sub-rule (2) of Rule 2 provides that the judgment debtor may also inform the Court of such adjustment and apply to the Court to issue a notice to the decree holder to show cause why such adjustment should not be recorded as certified and if the decree holder fails to show cause why the adjustment should not be recorded as certified, the court shall record the same accordingly. Sub-rule (3) of Rule 2 provides that adjustments which have not been certified or recorded as provided for in Rule 2, shall not be recognised by any Court executing the decree. The plea taken by the petitione
