Allowed

Sharad Gajanan Ambole and Anr. v. 1.GAURAMMA Kumarappa MEDAR(DECEASED)2.SHANKAR Kumarappa Medar and Othrs

Bombay HC12 Oct 2007FA/2272/2007

Case brief

AI extract

What is this about?

The High Court allowed this appeal against an order of the Bombay City Civil Court that allowed an executing summons denying a full opportunity to obstructionists in possession of the premises. The High Court held that the lower court's finding that evidence of tenancy was unnecessary was wrong under Section 47 CPC and Order 21 Rule 97.

What did the court decide?

Impugned order dated 3-9-2008 was quashed; matter remanded to Executing Court to dispose off summons after giving full opportunity to parties within six months.

Sharad Gajanan Ambole and Anr. Vs 1.GAURAMMA… — Execution and Attachment | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION

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FIRST APPEAL NO.2272 of 2007

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CHAMBER SUMMONS NO. 602 OF 2007 IN S.C.SUIT NO. 6805 of 1994

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Shri Sharad Gajanan Ambole

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Shri Gurunath Pundalika Ambole

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Mrs. Sharada Gurunath Ambole All r/at Room no. 10A, Ground floor, Ram Mandir, G.D.Ambedkar Road, Mumbai 400 012. ..Appellants (original obstructionists)

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v/s.

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Smt. Gauramma Kumarappa Medar (Deceased)

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Shankar Kumarappa Medar R/at 61-BG, Ferry Road, Madha Island, Mumbai 400 061.

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Gangappa Kumarappa Medar

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Kankamappa Kumarappa Medar

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Linganna Kumarappa Medar

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Smt. Laxmi Arvind Uggera

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Smt. Kanchamma Lingappa Medar

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Siddlinga Kumarappa Medar

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Nelkantha Kumarappa Medar

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Orig.Plaintiffs no. 2 to 8 residing at c/o. Sanjivani Milaya, New Bamboo Bazzar, Devanagiri Dist.Chitradurga, State Karnataka, Original plaintiffs no. 3-9 through their Constituted Attorney i.e. Plaintiff No.2 Shri Shankar Kumarappa Medar ..Appellants

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(No. 1 to 9 original plaintiffs)

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Ulukuntappa Ullappa Naik (died)

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Smt. Mareka Kubera Naik

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Nagesh Kubera Naik

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Shekhar Kubera Naik

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Raja Kubera Naik

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15.Ashoka Kubera Naik

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Hanumanta Ullappa Naik All r/at. Room no. 10A, Ground floor, Ram Mandir, G.D.Ambekar Road, Mumbai 400 012.

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...Respondents (no. 11 to 16 original defendants)

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Shri G.S.Godbole with Ashok Tajane for the Appellants

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Mr. Vivek Gupta for Respondent nos. 2 to 9

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CORAM : ANOOP V. MOHTA,J. DATED : 12th October, 2007

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ORAL JUDGEM	ENT
The	present	appeal	is	by	obstr	uctionist	s	nos.		1, 2
and 3	against	an	order	dat	ed 3-	9-2007	pa	ssed	by	the
Bombay	City	Civil	Court	at	Bom	bay	(the	exec	uting	Court)
in Cham	ber su	mmons	no.	602	of	2007	in	civil	suit	no.
6805/1994	as	chamber	summo	ns	taken	out	by	t	he	decree
holder	against	the	obstructi	onists	to	th	e	executi	on	of
the d	ecree in	the	judgeme	nt	has	been	al	lowed	by	further

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observing that the obstructionists are disentitled to

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any right and interest in the property.

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The Plaintiff/decree holder filed the suit against

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the	defendants	for evictio	n and	possession	.	The
plaintiff	is	original tenant	of the p	remises	i.e.	10A.
The	suit	was against	the judgement	debtors	by	holding
them	to be	the tres	passers. The	first	appeal	no.
630/1998	filed	by the	judgement debtor	was	dismissed	on
11-2-2005	and	further the	said dismissa	l was	c	onfirmed
by the	Supreme	Court on	18-3-2005.	While	dismissing	the
SLP	(Special	Leave	Petition)	the		original
defendants/j	udgement	debtors	were	given	time	till
30-9-2005	to	vacate the	said premises	upon	filing	an
usual	undertaking	within	four weeks.		The	said

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undertaking was also filed on behalf of all but signed

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by only one defendant.

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3.	O	n 27-9	-	2005	in the	meantime,	the	o	bstructionists
have		acquired te	n	ancy	rights	directly	from	the	landlord
who	were	not party		to	a suit	and/or	any	such	proceedings
and	even	in the		Suprem	e Court.	The	said	lease/	deed has
been	duly	registered		and	also	placed	on	record	alongwith
an	affidavit	in		reply	to this	chamber	sum	mons.	The
obstructio	nists	have		been	in	possession	of	the	said
premises		since 27-	9	-2005	i.e.	date		of	tenancy
agreemen	t.	Therefor	e,		when	the applic	ation	was	moved

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for execution, the obstructionists objected the same

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that resulted into present chamber summons in question.

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Heard finally by consent of both the parties. The

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learned	Executing Co	urt	after	consider	ing	the	material
placed	on record wit	hout	giving	any	opport	unity to	the
parties	to lead ev	idence	held	that	the	evidence	of
landlord	is not neces	sary	to	be rec	orded	before a	legal
adjudication	of the	cha	mber	sum	mons	and	further
observing	that the	obstr	uctionists	have	no	say to	the
claim	of the decree	hol	der	with reg	ard	to the	execution
of decree	and lastly	held	that	these	pro	ceedings are	not

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barred by limitation and thereby allowed the chamber

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summons.

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5. Admittedly, the obstructionists are not claiming

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any rig	hts or	inte	rest in the	proper	ty from	the
plaintiff/	decree	holder.	The landlord	was	not party	to
any of	these	proc	eedings including	the	undertaking	given
before	the	Hon’ble	Supreme Court	as	referred	above.
Admittedly,	obst	ructionists	are in	possession	of	the
property	since	27-9-	2005 based	upon	the re	gistered
tenancy	deed.		Admittedly, the	decree	holder/	plaintiff
has not	raised	any	objection to the	contents	of the	said

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deed, the execution of the said and also the possession

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of the premises by the obstructionists.

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In this background, considering the existing

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provisions	and	scheme	of	order 21	rule	97	of	Civil
Procedure	Code	(C.P.C.)	there	remain	no	doubt	that	the

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executing	Court	need	to give	full oppo	rtunity	to the
person	interested	in	the	property	basi	cally the
immovable	property		in question.		The	obstructionists

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being in occupation of the property is definitely person

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interested in the property/premises.

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7. I have	already held in Second Appeal no 764/2005
decided on	3-10-2005 (Sardar Aasanbhai	Attar	v/s.	Usman
P. At	tar) that Executing Court	must	give	full
opportunity	to the "third person"	and/or	"any	person"
who has	right or interest in	the	property.	The
obstructionists	are undisputedly in	possession	of	the

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property, have rights and interests in the suit

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premises.

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8.	Even as per s	ection 47 of th	e CPC and in view of
the	above	provisions,	a separate	trial	is	barred.	It
means	the	person	like obstructio	nists	have	no	other
remedy	available	to	adjudicate thei	r	claim	and/or	rights
with	regard	to prope	rty/premises in	que	stion.	In	this
background,	I	am	of the view	tha	t t	he obstru	ctionists
are	definitely	entitled	to have	full	op	portunity to	put
their	case	including	the evidence	of	the	landlord,	if
they so	desire.	There	is nothing	on	record	to show	that
they	have	declined to	lead eviden	ce	of	landlord	and/or
such	other	evidence.	The lear	ned	couns	el appearing	for
the	Responden	t decree	holder conte	nded	that	in	earlier

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chamber	sum	mons obs	tructionists	have	declined to	lead
any	evidence.	However,	by	order	dated 24-1-2007	in
earlier	first	appeal n	o.	201/20	07 filed by	the
obstruction	ists	while	allowing	the	obstructionists	to
withdraw	the	chamber	summons	no.	331/2006,	granted
liberty	to	file fresh	chamber	summons	for the	same

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relief and kept all contentions open of the parties on

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merits.

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9.	Even oth	erwise apart	from the above	provisions	t is
necessary		before	passing	any	adverse	order	specially in
reference	to	the	possession	of	the	immova	ble properties,

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that an opportunity need to be given to the

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obstructionists.

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The principle of natural justice just cannot be

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overlooked.		The	rights	of	the obstructionists	through
the landlord	even	based	upon	the	Bombay Rents, Hotel	and
Lodging	House	Rates	Control	Act,	1947 (Bombay Rent	Act)
Sections	5(4),	5(11)(c)	(i)	and	(ii) as sought to	be
contended	based	upon	1	988	Maharashtra Rent	Control
Judgement	-709	Smt.	R	amkali	Rambharaose Katiyar	and
others	v/s.	Ba	mdulare	Shivp	rasad Katiya, need	detailed
reasonings	in	either	way.	The	action of landlord	of
creating	such	tenancy	,	without	evicting the	decree
holder/plaintiff,	whe	ther	it	is	in breach of	such
provisions	of	the	Bombay	Rent	Act, sought and	held

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above, also	need	detail	reasoning	because
obstructionists are	not	claiming any	rights	whatsoever
through the decree holder and/or th	rough the	judgement
debtors.

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11.	The j	udgement rel	ied by the City Civil Court Judge,
in	the	case	of Jagdish v/s.	Chand	rapal	2007	(1)
Mahara	shtra	Law	Journal 402	is	dis	tinct	and
distingu	ishable	on	facts itself.	The	obstru	ctionists	in
the	pres	ent c	ase cannot be said	to	be	tress	passers
and/or		their	occupation cannot be	s	aid	to	be

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unauthorised unless decided and declared by the

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competent Court accordingly.

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12.	The end	eavour was of th	e Executing Court	/ Judge to
see	that	decree	holder sho	uld get	the	fru	it of	his
decree	in	a suit	of 1994.	The	learn	ed	counsel	appearing
for	the	decree	holder as	submitted	that	in	such	cases
where	the	re is	no dispute	about	even	the	existance	of
such	tena	ncy or	registered	documents	of		the	tenancy,
there	is	no qu	estion of	leading		any	evidence,	is
unaccept	able.	The	finding	that the	evi	dence	in	this
matter	is	absolutely	unnecessa	ry is		wrong.	It	is
further	wro	ng comm	itted by	the	Exe	cuting	Court	by

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observing that the obstructionists have failed to prove

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any legally recognizable right.

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Taking all this into accoun and considering the

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scheme	and	pur	pose	of	provisions	of	section	47	and	order
21	rule	97	of	Civil	Procedure	Code,	I am	of	the	view
that	full		oppo	rtunity	should	be	given		to	the

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obstructionists to put up his case, in accordance with

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law.

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In the result, the impugned order dated 3-9-2007 is

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quashed	and	set aside.	The	matter	is	rem	anded	back.
The	Executing	Court,	after	giving	ful	l o	pportunities	to
both	the	parties and	uninfl	uenced	by	the	obser	vations
made	in thi	s order,	pass	appropriate		order	according	to
law.	The	parties to	appear	before	the	Exec	uting	Court
on	1-11-2007.	The	Executing	Court	in	the	facts	and

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circumstances of the case shall dispose off the present

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Chamber summons preferably within six months.

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The appeal is allowed accordingly. No order as to

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costs.

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[ANOOP V. MOHTA,J.]

Sharad Gajanan Ambole and Anr. v. 1.GAURAMMA Kumarappa MEDAR(DECEASED)2.SHANKAR Kumarappa Medar and Othrs

Case brief

What is this about?

What did the court decide?

Sharad Gajanan Ambole and Anr. v. 1.GAURAMMA Kumarappa MEDAR(DECEASED)2.SHANKAR Kumarappa Medar and Othrs

Case brief

What is this about?

What did the court decide?

What the court decided

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