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S.N. Satyanarayana, J.—This is judgment debtor - tenant''s revision challenging the order dated 03.11.2009 in Execution No. 34/2009 on the file of the Court of 14th Additional City Civil Judge (CCH 28), Bangalore on I.A. Nos. 2 to 5. However when the matter is taken up for final hearing today in the presence of Counsel for both parties, the Counsel for petitioner has restricted his prayer in this revision to the order passed by the trial court against its application in I.A. No. 3, which was filed under Order 21 Rule 26. CPC seeking "to stay of further proceedings of the present execution proceedings, which is pursuant to the exparte decree dated 26.9.2008 passed by this Hon''ble Court in O.S. No. 9242/2007". The dismissal of which is challenged in this revision.
The facts leading up to the filing of this revision are that the petitioner herein is judgment debtor in Execution No. 34/2009 which is filed by the respondent herein to execute the decree of ejectment passed in O.S. No. 9242/2007 on me file of the 14th Additional City Civil Judge, CCH-28, Bangalore.
The respondent herein is the owner of residential premises viz., "Shreenidhi", bearing No. 978, III Cross, I Block, Kalyananagar, Bangalore - 43. The said premises was taken on lease by the petitioner for the use and occupation of its Director - Mrs. Rita Mahajan on monthly rent of Rs. 14,000/-. The lease was for a period of 11 months and the agreement of lease was not registered. On completion of initial period of 11 months, the lease was not renewed. Thereafter, respondent herein who is landlord of said premises filed ejectment suit against the petitioner herein seeking direction to it to quit and deliver vacant possession of suit schedule property and also to pay damages at Rs. 15,000/- per month from 1.11.2007, the date of suit till petitioner delivers vacant possession of suit schedule property, in the said proceeding, even before the summons was served on the defendant/petitioner herein, vakalth was filed on its behalf by an Advocate, namely, Sri V.K. Ray. The said vakalath was executed by Smt. Rita Mahajan. In the said suit, the defendant i.e., petitioner herein neither filed its written statement nor participated in the proceedings, which resulted in passing of an exparte judgment and decree in the said suit on 26.9.2008 granting three months time to the petitioner herein to quit and deliver vacant possession of suit schedule premises to respondent herein with further direction to pay damages at the rate of Rs. 15,000/- per month from the date of suit till delivery of vacant possession of suit schedule premises. Pursuant to said decree, respondent herein levied execution petition on 5.1.2009, which is numbered as Ex. No. 34/2009, in the said petition delivery warrant was issued by the executing court.
Petitioner''s case is that it was not aware of the original suit as well as execution proceeding initiated by respondent herein. According to the Director of the petitioner, on 9.2.2009 at about 8.30 a.m., when she was taking her husband to hospital for post surgery follow-up treatment, the respondent came to the suit schedule premises along with court Bailiff to execute delivery warrant issued in execution No. 34/2009, she being under distress made an endorsement on the warrant seeking two weeks time to voluntarily vacate the premises and left with her husband to hospital leaving her daughter behind. Upon her return from the hospital, she found her house locked and sealed, her daughter missing, later traced in her brother''s house. Petitioner, her family members were on street with only wearing apparels. Later, on 10.2.2009 she moved the executing court, sought for two months time to vacate the tenanted premises in her occupation. The matter was adjourned to 11.2.2009, on that day respondent appeared and sought time to file objections by 12.2.2009. On 12.2,2009 objections were not filed. However the shara of the Bailiff which was extracted in the order sheet showed that while executing delivery warrant the respondent -decree holder himself locked up the premises in occupation of the petitioner and the same was viewed seriously by the executing court regarding the manner in which the delivery warrant was executed, hence posted the matter to 17.2.2009 to hear arguments on Bailiffs report.
On 17.2.2009 the respondent herein to avoid consequences of civil and criminal actions persuaded Mrs. Rita Mahajan to enter in to compromise, to file a joint memo stating that she would vacate the house by 27.3.2009, the arrears of damages was quantified at Rs. 2,63,000/-, that she would pay Rs. 1,00,000/- towards damages immediately and the balance in installments. The said Mrs. Mohajan innocently accepted it without realising the fraud played by respondent. On 17.2.2009 when joint memo was presented the executing Court received it but, did not act upon it and orally stated that there is no provision under Order 21 of CPC for any such arrangement in respect of a decree for possession of immovable property and it would not act on the said joint memo and further indicated its mind to the respondent of the consequence that would follow and the respondent though in the joint memo did not seek the Hon''ble court to order restitution of leased premises in favour of petitioner to avoid unpleasant consequences, requested the court to hand over keys of premises to petitioner. Accordingly the petitioner got the keys of the suit schedule property and its Director and her family is in occupation of the said premises.
It is the case of petitioner that such arrangement is not provided under Order 21 CPC and that after this incident petitioner came to know that fraud is played by the respondent herein in securing exparte decree against the petitioner. Hence, the petitioner subsequently filed Miscellaneous Petition in 171/2009 on the file of City Civil Court, Bangalore, seeking recall of the exparte order passed in O.S. No. 9242/2007. According to the petitioner, the joint memo was accepted since the offer of settlement was made by the decree holder without disclosing the fraud committed in obtaining the exparte decree. Since the said fraud came to the knowledge of the petitioner subsequently, miscellaneous petition is filed invoking its statutory right provided under Order 9 Rule 13 CPC for setting aside the exparte decree and along with said I.A. III filed a memo to withdraw I.A. I filed by it.
It is also the case of petitioner that at the time of filing joint memo petitioner had tendered to the respondent a post dated cheque for Rs. 50,000/-, petitioner after discovering the fraud, instructed the respondent not to present the said cheque, much against its instructions the respondent presented the same, which came to be dishonoured, thereafter respondent herein instituted proceedings u/s 138, N.I. Act.
In the meanwhile, petitioner filed an application in execution proceedings in I.A. III under Order 21 Rule 26 for stay of execution proceeding, before the same was considered steps were taken for issue of re-delivery warrant of the suit schedule premises. Hence, petitioner filed writ petition in WP. No. 10718/2009 seeking this Court to take cognizance of the fraud practiced on defendant in original suit O.S. No. 9242/2007 and also seeking initiating of contempt of court proceedings as well as declaring the proceedings dated 17.2.2009 in Ex. No. 34/2009 as not constituting an order within the meaning of Order 21 Rule 26 CPC. In the meanwhile, during the pendency of the said writ petition the executing court passed order on I.A. III. In view of that, the W.P. No. 10718/2009 was dismissed on 30.11.2009, as it has become infructuous. Thereafter, this revision is filed seeking revision of order dated 3.11.2009 in Ex. No. 34/2009 on IAs. 2 to 5.
In this proceeding, the respondent - decree holder entered appearance through counsel. Initially when the matter came up for the first time on 16.12.2009 with the consent of both the parties it was decided to take up the matter for final hearing, hence the entire records in original suit, execution proceedings and miscellaneous were summoned. On going through the original records, it is seen that an Advocate by name V.K. Ray had filed vakalath for petitioner which was executed by Smt. Rita Mahajan, the Director of petitioner - defendant in the original suit. After hearing the parties, this Court felt that Court notice is required to be sent to Sri V.K. Ray to ascertain whether he had entered appearance in the original suit upon the instructions of petitioner''s - Director; Smt. Rita Mahajan. The notice was not served, it was re-issued again on 26.2.2010. But the same could not be served for the reason that the door of the said Advocate office was always closed. In the meanwhile, the Counsel for the petitioner submitted that the fraud or otherwise committed in representing the petitioner before the trial Court need not be gone in to in this revision, that he would confine his arguments only in respect of the order passed on IA.III in Ex. No. 34/2009. Hence, this Court decided to hear the parties and proceed to pass order on the available records.
After hearing the counsel for parties and perusing the material available on record, the points that arise for consideration in this appeal are:
1) Whether the court below was justified in rejecting the application under Order 21 Rule 26 CPC for stay of the further proceedings and pass orders for reissue of delivery warrant in respect of the suit schedule premises pursuant to decree dated 26.9.2008?
2) What order?
On appreciation of the arguments of the Counsel for parties and perusal of entire record of the courts below, this Court answers Point No. 1 in the affirmative and point No. 2 in dismissing the revision for the following reasons:
The facts and circumstances of this case are peculiar. Petitioner is a company represented by its Director Mrs. Rita Mahajan. She admits that the petitioner is tenant in possession of the suit schedule premises and she has been in occupation and enjoyment of the same along with her family members since 15.10.2006 as Director of petitioner Company. The petitioner has been paying rent regularly till the date of filing of the suit. To substantiate that, the petitioner draws the attention of this Court to the pleading in the plaint, where there is no reference to arrears of rent. It is stated, from the date of suit till date of filing of execution proceedings to take delivery of possession of the suit schedule premises rent was paid by cash. The argument of the petitioner that the rent was always paid by cash cannot be accepted in view of the documents produced by the plaintiff at the time of filing suit, wherein the letter written by the petitioner clearly discloses that the payments made at the initial period of tenancy are confirmed by letters under which the cheques were sent to plaintiff. Further, the notice which was sent by the plaintiff prior to filing of the suit discloses that from the end of 2006 till issue of legal notice the petitioner herein was in arrears of rent. The petitioner has not countered the same, on the contrary, under the joint memo petitioner has accepted the arrears of rent/damages at Rs. 2,63,000/- and has paid a sum of Rs. 1,00,000/- at the time of filing joint memo and agreed to pay in installment the balance of arrears of rent/damages amounting to Rs. 1,63,000/-. Therefore, the contention of the petitioner that it was regular in the matter of payment of rent up to the date of the filing the suit and for the first time after filing of the suit a sum of Rs. 1,00,000/- was paid in February 2009 while filing the joint memo cannot be accepted.
The further contention of the petitioner that it was not aware of the suit and execution petition cannot be accepted. As could be seen from the records, the petitioner herein who is defendant in O.S. No. 9242/2007 has entered appearance through counsel by name Sri V.K. Ray. On visual verification of the signature of petitioner''s - Director, Mrs. Rita Mahajan, on the vakalath filed by V.K. Ray in the said suit and also her signature on all the affidavits, applications, vakalath in execution proceedings and as well as in execution petition and also in this revision prima facie discloses that the signature of Mrs. Rita Mahajan, Director of petitioner, on vakalath filed by V.K. Kay on behalf of petitioner herein in the original suit is same as the signature of Smt. Rita Mahajan, Director of the petitioner herein in this proceedings. Therefore, the contention of the petitioner that it was not aware of the proceedings in original suit cannot be accepted. Therefore, the allegation of fraud against respondent in securing ex-parte decree in O.S. No. 9242/2007 cannot be accepted. Though there is allegation of fraud, it is only on afterthought. The petitioner - Director when personally appeared in Ex. No. 34/2009 on 10.2.2009 does not speak of fraud, contrary to that she pleads for grant of 2 months time to voluntarily vacate. Even in this petition, she admits that she was persuaded by the respondent to settle the dispute. She does not speak of fraud at that stage. It is only after filing joint memo accepting arrears of rent at Rs. 2,63,000/- and making part payment of Rs. 1,00,000/-, the petitioner has come up with the theory of fraud, to substantiate the same she is trying to make use of office noting in the order sheet in Ex. No. 34/2009 dated 12.2.2003, which is contrary to the contents of Bailiff''s report.
It is also seen that at the time of argument of this revision the Counsel for the petitioner prevailed upon this Court not to pursue the matter on issue of notice to V.K. Ray whose presence is very much essential to know whether he was instructed by the petitioner or somebody else to file vakalath in the said proceedings. The presence of Sri V.K. Ray would have definitely decided the said issue. It is further seen that nowhere in the pleading Mrs. Rita Mahajan deny that the signature on the vakalath filed in O.S. No. 9242/2007 is not her signature. The Counsel for petitioner in this petition, who according to his statement is the cousin of the said Mrs. Mahajan, admits before the court that the signature on the vakalath filed in original suit is that of his cousin, Mrs. Rita Mahajan. Under the circumstance, no credence can be attached to the theory of fraud committed by respondent herein in securing decree for ejectment in OS. No. 9242/2007.
The further contention of the petitioner is that the delivery warrant issued earlier is already executed, the respondent who had taken possession of the premises by putting lock on the premises has taken possession of the same. Since the said premises is voluntarily surrendered by the respondent reissue of delivery warrant does not arise. It is further contention of petitioner that the recording in the order sheet dated 17.2.2009 in receiving the joint memo and delivering key of the premises to the petitioner is not an order, therefore, non-compliance of terms of joint memo is not violation of order, is without basis. Though the petitioner has made several averments regarding alleged observation of executing court regarding maintainability of joint memo, the noting on the order sheet does not substantiate the same. The said allegations are totally baseless and self-serving, does not support the case of the petitioner. The petitioner in support of its case relied upon the following reported decisions;
1) Hamza Haji Vs. State of Kerala and Another, Re - fraud on court:
2) Tirumalachetti Rajaram Vs. Tirumalachetti Radhakrishnayya Chetty, Redefinition of decision.
3) Renuka Das Vs. Maya Ganguly and Another, Re - Revisional power of High Court.
4) (2004) 13 SCC 691 Bharat Singh and Ors. v. Narender Kumar and Ors., Re - Revisional jurisdiction of High Court.
5) 2000 AIHC 4517 N.A. Ramakrishna v. K.N. Panduranga Setty and Ors., Re - Scope of Revision.
6) (2004) 13 SCC 324 Subramanium Sethuraman v. State of Maharashtra and Anr. Re - Review.
On careful reading of the above judgments, it is seen that none of the said judgments have direct bearing on the point that has arisen for consideration in this proceeding.
The conduct of the petitioner in this proceeding has been self contradictory and deliberate attempt to mislead the Court. The Director of petitioner admits her signature on the vakalth filed in O.S. No. 9242/2007, but denies filing the same in the said original suit. She alleges fraud, but strenuously argues against summoning the said Advocate V.K. Ray, who filed vakalath on its behalf. Admits in her pleading that, she was "persuaded to enter in to settlement by respondent", but alleges that she was misled to join respondent in filing joint memo. Admits pleading for grant of 2 months time in executing court and taking back the possession of the house from court after filing of joint memo. Alleges that the respondent herein had taken possession of the house while executing the delivery warrant, which was found fault with by executing court and there was threat of civil and criminal prosecution against respondent, because of that the respondent voluntarily delivered the possession of schedule premises to petitioner. The perusal of the entire order sheet in original suit, execution proceedings and the pleadings clearly discloses that there is no merit in the allegations of petitioner.
On the contrary, the records clearly disclose that the delivery warrant issued earlier in Ex. No. 34/2009 was not executed by the court Bailiff at first instance, since the respondent herein refused to take possession of the house along with moveable of the petitioner situated therein at that time. Hence, the court Bailiff made the respondent to buy new locks and receiving the same from respondent locked the schedule premises by himself and sealed the said locks and surrendered keys to Court. Since the parties in execution proceedings filed joint memo, respondent herein decree holder in said proceeding had no objection for return of key to the judgment debtor. Therefore, in effect, the earlier delivery warrant issued in Ex. No. 34/2009 is not executed and decree holder had not taken possession of the schedule premises. Therefore, there is no impediment to the executing court to order for reissue of delivery warrant in Ex. No. 34/2009.
It is further seen from the records, the petitioner herein after securing possession of schedule premises deliberately acted contrary to joint memo filed on 17.2.2009. The petitioner, at first instance, filed miscellaneous petition in Misc. No. 171/2009 on the file of City Civil Court, Bangalore, under Order 9 Rule 13, CPC seeking recall of ex-parte decree in OS. No. 9242/2007, withheld admitted arrears of damages as agreed to be paid under joint memo, tried to secure ex-parte stay of judgment and decree in Misc. No. 171/2009. After rejection of the said application the present I.A. No. III under Order 21 Rule 26, CPC is filed in Ex. No. 34/2009, The trial Court after going through all the averments in the said application and after appreciating the facts and circumstances of the case has rightly rejected the same and has further proceeded to re-issue delivery warrant giving all the necessary assistance to the court Bailiff to effectively execute the decree in O.S. No. 9242/2007.
On re-appreciation of the facts and circumstances of the case, this Court finds that there is no justification to revise the well-reasoned order passed by the executing court in Ex. No. 34/2009. Hence, the revision fails. Consequently, the revision petition is dismissed with costs of Rs. 5,000/- payable by the petitioner to respondent.