Petitioner challenged the dismissal of an execution petition regarding non-allotment of a room in a reconstructed building. This Court held that the petition was not maintainable due to violation of the specific one-month time limit fixed by a prior order.
None; the execution petition was declared not maintainable and the original petition was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MRS. JUSTICE ANNIE JOHN
TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940
OP (RC).No. 14 of 2019
PETITIONER/S:
A.DAMODARA PAI, GENERAL AND PROVISION MERCHANT, HOUSE NO.17/185, MULLACKAL WARD, ALAPPUZHA - 688 011, REPRESENTED BY HIS SON AND POWER OF ATTORNEY HOLDER D.UDAYAKUMAR, AGED 64, S/O.DAMODARA PAI, PUTHENMADATHIL, MULLACKAL VILLAGE, ALAPPUZHA,PIN-688 011.
BY ADVS. SRI.DINESH R.SHENOY SRI.EBIN MATHEW
SRI.ROHIT PREMANANDAN SHENOY
RESPONDENTS:
1 B.GOVINDAN, RESIDING AT SREENIVAS,MULLACKAL, ALAPPUZHA AND PRESENT ADDRESS BHIMA JEWELLERS, AYURVEDA COLLEGE JUNCTION, THIRUVANANTHAPURAM, PIN - 695 001.
2 B.KRISHNAN, RESIDING AT SREENIVAS, MULLACKAL, ALAPPUZHA AND PRESENT ADDRESS BHIMA JEWELLERS, DICKINSON ROAD,MANIPAL CENTRE, BANGALORE.
BY ADVS.SMT.P.SEEMA SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.N.MANMADAN SRI.M.S.IMTHIYAZ AHAMMED
THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 19.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Harilal, J
The petitioner was a tenant under the judgment debtors, who had filed R.C.P.No.174/1970 for evicting him under Section 11(4)(iv) of the Kerala Building (Lease & Rent Control) Act, 1965. (Parties are referred to as in the original suit). Though the judgment debtors got vacant possession of the building, they delayed the reconstruction and after construction was over, they did not give any room to the tenant/decree holder as required under law. The decree holder/tenant had filed I.A.No.2431/1989 under the third proviso to Section 11(4)(iv) of the Act, praying that he may be allotted to an appropriate room in the reconstructed building. The decree holder/tenant had filed C.R.P.No.1998/1997 and
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the judgment debtors/landlords had filed
C.R.P.No.1815/1997 and 1831/1997 before this Court.
While considering the aforesaid CRPs, this Court by a common judgment, set aside the direction to pay damages to the decree holder/tenant, recorded the submission that the landlords/judgment debtors are prepared to give a room to the decree holder/tenant in the reconstructed building and directed the decree holder/tenant to approach the landlords/judgment debtors with a request to allot a room within one month. The decree holder/tenant had issued a lawyer's notice on 18.10.2015 requesting for allotment of one room in the reconstructed building. But the judgment debtors have not responded to the said notice and in that circumstances, E.P.No.238/1995 was filed by the
decree holder/tenant.
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said application contending that E.P. itself is not maintainable as it was not filed within one month as directed by this Court. There is a delay of more than 11 years in filing the E.P., and also no reason has been stated for the delay in filing the E.P. In short, according to the judgment debtors/landlords, the petition is filed in violation of the terms of the order passed by this
Court.
whether the E.P. is maintainable or not. Thereafter, the execution court dismissed the E.P. on a finding that it is not maintainable as it was not filed within one month as directed by this Court and filed after 11 years and 11 months only. Though the decree holder-tenant had preferred revision petition as R.P. No.1/2017 before the
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District Court, Alappuzha, the District Court, Alappuzha also dismissed the R.P., confirming the order of the execution court. The legality and propriety of the findings, whereby the court below found that the E.P. is not maintainable is under challenge in this original petition.
the court below dismissed the E.P. on a finding that the E.P. is not maintainable as it was not filed within one
month as directed by this Court in a common order passed in C.R.P.Nos.1998/97, 1815/97 and 1831/97 and filed after 11 years only. We have meticulously gone through the common order passed by this Court in the aforesaid CRPs. As rightly observed by the court below, in paragraph No.12 of the said common order, this Court directed “ the decree holder-tenant to
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approach the judgment debtors-landlords within a
period of one month from the date of the order, or give such intimation by registered post. If such an application is received, a decision is to be taken within another one month thereof and communicated to the tenant for his acceptance within such time as may be specified .” Thus,
this Court fixed one month time for the tenant to approach the judgment debtors/landlords seeking allotment of a room and offering the fair rent for the
same. But, he did not approach the judgment debtors/landlords within one month as directed by this
Court and he approached the judgment debtors/landlords, after more than 11 years and 11 months only.
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get 12 years period to file E.P. As rightly held by the District Court, going by Article 136 of the Limitation Act, it could be seen that generally 12 years time is provided to execute a decree other than the decree for mandatory injunction or order of any Civil Court. But when the decree or order sought to be executed, specifically prescribes time limit for seeking execution, it should be done within that time. As per the order sought to be executed, the tenant/decree holder was given right to occupy the tenanted premises with a rider that he must approach the landlords/ judgment debtors, within a period of one month or give intimation by registered post within the said time. Here, the tenant has not approached the landlords/judgment debtors within a period of one month or given intimation by registered post within the
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said time in obedience to the direction of this Court.
Instead of it, he exercised the option for execution, just before two days to complete the 12 years period. Since he has violated the terms of the order, which is sought to be executed, the E.P. itself is not maintainable.
We do not find any illegality or impropriety in the concurrent findings of the courts below. Hence this original petition fails and it is dismissed.
sd/- K.HARILAL, JUDGE
sd/- ANNIE JOHN, JUDGE
AMV/22/02/2019
APPENDIX
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PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF THE ORDER DATED 12/4/2017 IN E.P.NO.238/2015 IN O.S.NO.174/1970, PRINCIPAL MUNSIFF COURT, ALAPPUZHA.
EXHIBIT P2 TRUE PHOTOCOPY OF ORDER DATED 15/11/2018 IN R.P.NO.1/2017, DISTRICT JUDGE, ALAPPUZHA.
RESPONDENTS EXHIBITS : NIL
TRUE COPY P.A.TO JUDGE
1 issue framed by the court
Whether an execution petition under Section 11(4)(iv) of the Kerala Building (Lease & Rent Control) Act, 1965 is maintainable when filed after a delay of more than 11 years despite a prior judicial di
2 provisions across 2 enactments
A.DAMODARA PAI
B.GOVINDAN
B.KRISHNAN
K.HARILAL
ANNIE JOHN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
