Kerala High Court
Lijeesh C.V vs Meethal Saseendran on 11 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944
EX.SA NO. 11 OF 2022
AGAINST THE ORDER/JUDGMENT IN AS 18/2022 OF SUB COURT, KANNUR
AGAINST THE ORDER IN E.A.NO.185/2022 IN E.P.NO.110/2021 IN O.S.NO.207/2013 OF
PRINCIPAL MUNSIFF'S COURT, KANNUR
APPELLANT/APPELLANT/CLAIM PETITIONER:
LIJESH C.V
AGED 34 YEARS
S/O. ASHOKAN
CHOYICHI VEETTIL
AZHICODE DESOM P.O
AZHIKODE SOUTH
NEERKADAVU
KANNUR, PIN - 670 009
BY ADV DAISY A.PHILIPOSE
RESPONDENTS/RESPONDENTS/RESPONDENTS:
1 MEETHAL SASEENDRAN
AGED 54 YEARS
S/O. GOPALAN
VAYISAKH,
MAKRERI P.O.
MUNDALLUR
KANNUR, PIN - 670622
2 THARAYIL PEEDIKAYIL ABDURAHIMAN HAJI
AGED 72 YEARS
S/O. KUNHAMMED
ROSHNI MANZIL
CHIRAKKALKULAM WARD
KANNUR, PIN - 670003
R2 BY ADV. SRI.SHAJI THOMAS (CAVEATOR)
THIS EXECUTION SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11.01.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Ex.S.A.No.11/2022
2
JUDGMENT
This Execution Second Appeal has been directed against the
judgment and decree in A.S.No.18/2022 on the file of Subordinate
Judge's Kannur, which in turn arise out of the order in
E.A.No.185/2022 in E.P.No.110/2021 in O.S.No.207/2013 on the file
of Principal Munsiff's Court, Kannur.
2. Appellant is the claim petitioner and first respondent is
the judgment debtor. Claim petition has been filed under Order XXI
Rule 97 and Section 151 of the Code of Civil Procedure, 1908. The
decree schedule property and the schedule property in E.P.No.110
of 2021 belong to the first respondent and the appellant was put in
possession of the schedule property as per lease agreement dated
03-02-2018 executed between the appellant and the first
respondent. An amount of Rs.50,000/- was paid as security deposit
at the time of execution of lease agreement to the first respondent.
Thereafter, he has been paying rent inclusive of the month of April
2022. In the month of May 2022, first respondent demanded
increased rent and the appellant was not amenable for that. The
first respondent also failed to issue the receipts for payment of
Ex.S.A.No.11/2022
rent and thereafter the relationship between them strained. On
27.06.2022 the Amin of the court inspected the premises and tried
to evict the appellant and against which the petition has been filed.
The first respondent is colluding with the second respondent to
evict the appellant. Hence the petition.
3. First respondent filed counter statement contenting that
the appellant was put in possession as per lease agreement dated
03.02.2018. It is admitted that the first respondent received
Rs.50,000/- as security deposit. The rent up to February, 2022
alone has been paid. There is no collusion between the
respondents.
4. The second respondent filed counter statement
contending that the claim petition is not maintainable in view of
the decree in O.S No.2017/2013 of the Principal Munsiff's Court,
Kannur. As per the decree it is declared that the Sale Deed
No.4519/2006 of SRO Kannur is void and not binding on the
plaintiff (2nd respondent) and plaint schedule property and first
respondent is directed to surrender the plaint schedule property to
the second respondent. The appellant and first respondent
executed the lease deed collusively after a decree was passed
against the first respondent on 21-11-2016 and A.S.No.84/2016
Ex.S.A.No.11/2022
filed against it also dismissed. The doctrine of lis pendense also
applies. Hence, he sought for dismissal of the petition.
5. On hearing both sides the execution court found that
appellant is claiming under the first respondent/the judgment
debtor and he is a transferee pendente lite and the claim petition
was dismissed. Against which appeal was filed and the first
appellate court by the impugned judgment confirmed the dismissal
of the claim petition. Having lost in both the forums, appellant
approaches this Court in the Execution Second Appeal.
6. Heard both sides.
7. According to the learned counsel for the appellant, the
finding of the first appellate court the bar under Order XXI Rule
102 of the Code will apply since the appellant is a pendente lite
transfree is not sustainable in law since he is a tenant entitled for
the protection of the Kerala Buildings (Lease and Rent Control)
Act, 1965.
8. The learned counsel for the second respondent on the
other hand would contend that the claim petition filed by the
appellant under Rule 97 will not apply since Rule 97 of Order 21 of
the Code can be invoked only by a decree holder for the possession
of immovable property or the purchaser of any such property sold
Ex.S.A.No.11/2022
in execution of a decree is resisted or obstructed by any person in
obtaining possession of the property. Here admittedly appellant is
not the decree holder or the purchaser as envisaged under
Rule 97.
9. Counsel for the second respondent relies on Jumailath
Beevi & Ors. v. Rajeena & Ors. [2020 (4) KHC 443], wherein a
Division Bench of this Court held that when a resistance or
obstruction is offered by a transferee pendente lite or even when a
complaint of dispossession is raised by a transferee pendente lite,
scope of adjudication ought to be confined only to the question
whether the person who resist or who was dispossessed was a
transferee during the pendency of a suit in which the decree was
passed.
10. Sriram Housing Finance & Investment India Ltd. v.
Omesh Mishra Memorial Charitable Trust [2022 KHC 6650] also
relied on wherein the Apex Court categorically held that under
Order 21 Rule 97 of the Code only the decree holder can make an
application complaining about resistance or obstruction. On the
other hand, Order 21 Rule 99 of the Code deals with the right of
"any person" other than the judgment debtor who is dispossessed
Ex.S.A.No.11/2022
by holder of a decree for possession of such property or in case
where such property is sold in furtherance of execution of decree.
11. So, in the present case, the specific case of the appellant
is that he took the building on rent from the first respondent on
lease on 03.02.2018. Needless to say that lease is also a transfer of
interest in an immovable property. Since that transfer admittedly
has been effected after the passing of the decree pending the first
appeal it would definitely come within the purview of pendente lite
transfer and hence the bar under Order 21 Rule 102 of the Code
squarely applies and hence the claim petition filed by the appellant
has been rightly dismissed by the courts below. I don't find any
substantial question of law emerging for consideration for
entertaining the present Execution Second Appeal. Hence, appeal
is devoid of any merit and hence dismissed.
12. At the time of argument the learned counsel for the
appellant would submit that the appellant is conducting a hotel
business in the scheduled building and a breathing time should be
given to vacate the premises.
13. Counsel for the second respondent agrees to give two
weeks time. However, taking into account the facts and
circumstances, a period of one month from today is granted to the
Ex.S.A.No.11/2022
appellant for vacating the premises on condition that appellant
would file an undertaking affidavit before the execution court
within 10 days starting from this date agreeing to surrender vacant
possession of the building on or before 10-2-2023. He shall
handover the key to the execution court on or before that date,
failing which, the execution court can proceed with the execution
proceedings in accordance with law.
Sd/-
M.R.ANITHA
shg/ JUDGE
