Manoj, C.G. vs Infant Jesus Church and Others

R. Rajendra Babu, J.—This appeal is directed against the order of the learned Single Judge dismissing E.F.A. 13/1999. The Appellant-claimant filed E.A. 1368/97 in E.P. 466/95 in O.S. 919/92 before the Sub-Court, Ernakulam, and it was dismissed. Against the above order, the Appellant filed E.F.A. 13/99 and the learned Single Judge dismissed the. same. Aggrieved by the above judgment, the Appellant filed this appeal.

The Appellant filed E.A. 1368/97 in E.P. 466/95 in O.S. 919/92 before the Sub-Court, Ernakulam, under Order 21, Rule 99 CPC setting up independent tenancy over the plaint schedule building. It was alleged that the Appellant was a tenant of room No. 40/5006 of Cochin Corporation as the landlord the 6th Respondent, Fr. Francis D. Silva, Parish Priest of the Infant Jesus Church, Broadway, Ernakulam, had let it out to him on oral arrangement of lease at a monthly rent of Rs. 2,000 and also receiving from him an amount of Rs. 40,000 towards security deposit and thus he was in occupation of the building. It was further alleged that on 15th December 1997, the Amin from the Court along with other persons came to the room and demanded him to vacate the premises. The Appellant was not a party to any of the proceedings and was occupying the room from 1996 onwards as a tenant under the 6th Respondent and hence his right, title and interest over the building has to be adjudicated under Rule 101 of Order 21 Code of Civil Procedure. He filed E.A. 1382/97 also for directing the 6th Respondent to produce certain documents.

The claim put forward by the Appellant was resisted by the Respondents-landlords contending that the petition was filed in collusion with the judgment-debtor to delay the delivery of the decree schedule building and the Appellant was only an employee and agent of the judgment-debtor. It was further contended that the Appellant had no independent right or interest over the building and the allegations of payment of security deposit and the oral entrustment of the building were fake and hence denied.

The claim petition viz. E.A. 1368/97 was dismissed holding that no oral or documentary evidence was let in to prove the entrustment of the building to the Appellent on any rental arrangement or the payment of any security deposit and that there was no bona fides in filing the petition. E.F.A. 13/99 filed by the Appellant before this Court challenging the order, of the execution Court was dismissed holding, that the finding of the execution Court that there was no oral or documentary evidence to prove the alleged entrustment of the premises in question by the alleged obstrucotr did not call for any interference in the proceedings. Aggrieved by the above order dismissing E.F.A. 13/99, the Appellant filed this appeal.

Notice before admission was issued to Respondent and 1st Respondent entered appearance through counsel. The learned Counsel appearing for both sides were heard.

It was argued by the learned Counsel appearing for the 1st Respondent that an appeal before a Division Bench is not maintainable against an order of the execution Court, and as per Section 5 of the Kerala High Court Act, an appeal before a Division Bench would lie only against a decree passed in exercise of the original jurisdiction of subordinate Court. Section 5 of the Kerala High Court Act, 1958 reads:

Appeal from judgment or Order of Single Judge.- An Appeal shall lie to a Bench of two Judges from-

(i) a judgment or Order of a Single Judge in the exercise of original jurisdiction; or

(ii) a judgment of a Single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of original jurisdiction by a subordinate Court.

Clause (ii) makes it clear that an appeal before a Division Bench would lie only against an Order or Decree passed in exercise of the original jurisdiction by a subordinate Court. The learned Counsel for the 1st Respondent was placing reliance on a decision of a Division Bench of this Court in Padmanabhan v. Shriram Chits and Investments (P) Ltd. 1995 (2) KLT 61 to substantial his argument that all orders passed in execution of decree are orders passed in the execution side in spite of the provisions in Order 21 Code of Civil Procedure. to treat those Orders as Decrees. 1995 (2) KLT 61 was a case where a claim petition filed under Order 91, Rule 58 against an attachment was rejected as belated under Rule 58(1)(p). There it was held:

It may also be true that the order passed as a result of such adjudication may have the force of a decree for the purpose of appeal under the provisions of Order 21, Rule 58(4) Code of Civil Procedure. But whatever may be the scope and ambit of the enquiry to be conducted and the legal effect of the result of the adjudication, still the jurisdiction actually exercised can never be treated as anything different from that of an execution Court. The jurisdiction exercised though may be wide and akin in many respects to original jurisdiction, it will still be subject to all the limitations of the jurisdiction of the executing Court The proceedings will remain as proceedings initiated on the execution side of the Court in contrast to the original side of the Court.

It was argued by the learned Counsel for the Appellant that the decision cited supra has no application in the present case as that was a case where the claim petition was not entertained before the execution Court as belated as per Order 21, Rule 58(1)(b) of CPC and hence there was no adjudication of the claim put forward by the claimant, and that the above claimant had the right to agitate the above claim and get it adjudicated by filing a separate suit as provided under Order 21, Rule 58(5) Code of Civil Procedure. The learned Counsel for the Appellant further argued that as per the Amendment Act 104/1976, drastic changes were made to a large number of provisions in Code of Civil Procedure. The definition of ''decree'' as per Section 2(2) was amended and orders passed u/s 47 CPC were taken off from the definition of ''decree'' and instead specific provisions were made in Order 21 itself to treat certain orders passed in the execution side to jiav6 the effect of decrees. It was further argued that specific provisions were also made to treat certain orders passed in the execution side as decrees passed in the exercise of the original jurisdiction of the Court. On going through the different provisions in Order 21, we find some force in the above argument. For a proper appreciation of the real question in controversy, it would be beneficial to consider some of the provisions in Order 21 CPC which authorises to treat the order passed under those provisions as decrees. Order 21, Rule 33(4) provides that any money ordered to be paid under Rule 33 may be recovered as though it were payable under a decree for the payment of money. Rule 43A(2)(c) stipulates that any order determining the liability or me custodian of the attached movable properties shall be appealable as a decree. Order 21, Rule 50 deals with execution of decree against firms. Sub-rule (3) of Rule 50 reads:

Where the liability of any person has been tried and determined urider Sub-rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree.

Rule 58 deals with adjudication of claims to or objections to attachment of immovable property. Rule 58(4) reads:

Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subj to the same conditions as to appeal or otherwise as it were a decree.

Rule 46A to Rule 46I were brought in as per the amendment Act No. 104 of 1976, which deals with the proceedings against garnishee. Rule 46H reads:

Appeals.- An order made under Rule 46B, Rule 46C of Rule 46E shall be appealable as a decree.

But reading of Order 21, Rule 46C would make it clear that an order passed under Rule 46C is in exercise of the original jurisdiction of the Court and not as an execution Court. Rule 46C reads:

Trial of disputed questions.- Where the garnishee disputes liability, the Court may order that any issue or question necessary for the determination of liability shall be tried as if it were an issue in a suit, and upon the determination of such issue shall make such order or orders as it deems fit:

Provided that if the debt in respect of which the application under Rule 46A is made is in respect of a sum of money beyond the pecuniary jurisdiction of the Court, the Court shall send the execution case to the Court of the District Judge to which the said Court is subordinate, and thereupon the Court of the District Judge or any other competent Court , to which it may be transferred by the District Judge shall deal with it in the same manner as if the case had been originally instituted in that Court.

There is an express provision to treat the order passed under Rule 46C as an order passed in exercise of the original jurisdiction of the Court. Rules 97 to 105 deal with resistance to delivery of possession to decree-holder or purchaser. Rule 103 reads:

Orders to be treated as decrees. Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same conditions as to an appeal or otherwise as if it were a decree.

Rule 101 reads:

Question to be determined.- All questions (including questions relating to right, title or interest in the property) arising between the partie3 to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application and not by a separate suit and for this purpose the Courts shall, notwithstanding anything to the contrary contained, in. any other law for the time being in force, be deemed to have jurisdiction, to decide such questions.

A reading of Rule 101 would make it clear that orders passed under the above rule are orders passed in exercise of the original jurisdiction of the Court. The reasons for change would make it further clear that the legislature wanted to confer jurisdiction on the execution Court to finally decide all such matters. It reads:

Reasons for the change.- The Joint Committee noticed that in the original Bills the proposed Rule 101 of Order 21 empowered the executing Court to decide all questions including questions relating to right, title or interest in the property. The Joint Committee felt that Court executing the decree may not have jurisdiction, pecuniary or otherwise, to decide the question of right, title or interest in the property in question. Such an absence of jurisdiction may lead to delay in the disposal of the matter. The Joint Committee was therefore of the opinion that the executing Court should be clothed with jurisdiction to decide all such questions that such questions may be heard and finally decided. The proposed Rule 101 of Order 21 has been modified accordingly.

A consideration of the above provisions in Order 21 CPC would make it clear that the legislature intended to treat some of the orders passed by the execution Court to be decrees for the purpose of appeals or otherwise. It was further intended to treat certain orders thus passed to be in the exercise of the original jurisdiction of the Court so as to have a final adjudication of those matters and accordingly jurisdiction had been specifically conferred as per Order 21, Rule 46C and Rule 101 Code of Civil Procedure. Thus orders passed under Rule 46C and Rule 101 stand in a diffefent footing than the orders passed under the abovementioned other provisions of Order 21 CPC even though provisions were made to treat all such orders as decrees. As original'' jurisdiction had rot been conferred to the execution Court in deciding claims under Rule 58 CPC an appeal shall not lie to the Division Bench from an order passed under Rule 58. Hence the decision of this Court in 1995(2) KLT 61 has no application in the present case, and this aspect was not considered therein. When jurisdiction had been specifically conferred on the execution Court, orders passed under Rule 46C and Rule 101 are orders passed in exercise of the original jurisdiction of the subodinate Court and those orders shall come within Clause (ii) of Section 5 of the Kerala High Court Act. Hence this appeal is maintainable before a Division Bench.

The learned Counsel for the 1st Respondent argued that there was no merit in the claim put forward by the Appellant and he was not in possession of the building on the basis of any independent tenancy under the 6th Respondent, but he was only an employee under the judgment debtor, the 7th Respondent, and was causing obstruction to the delivery proceedings in collusion with the 7th Respondent. It was further argued that there was no occasion for the. Appellant to obtain possession of the building from the 6th Respondent as the judgment-debtor was in occupation of the building under the landlord. No evidence, either documentary or oral, was let in by the Appellant to prove that he was in possession of the building on the strength of any independent lease arrangement with the landlord. According to him it was only an oral lease granted by the 6th Respondent on agreeing to pay an amount of Rs. 2,000 p.m. towards rent and he had already paid an amount of Rs. 40,000 towards security deposit. No documents were produced to show the payment of the security deposit or the payment of rent at any point of time. In the absence of any such documents evidencing an independent tenancy under the 6th Respondent, much reliance cannot be placed on the case of independent tenancy set up by the Appellant.

The learned Counsel for the 1st Respondent argued that the 7th Respondent (the judgment-debtor) who was the tenant of the building was contesting the matter and had taken up the matter twice before the apex Court and there was no occasion for the Appellant to have independent interest over the building. The 1st Respondent, the Infant Jesus Church, filed O.S. 919/92 before the Sub Court, Ernakulam, for eviction of the tenant from the building with arrears of rent and that suit was decreed. Even though the 7th Respondent fought it up to the Supreme Court, he could not succeed. Thereafter the 7th Respondent filed O.P. 16288/97L challenging the notification exempting the churches from the purview of the Kerala Buildings (Lease and Rent Control) Act and obtained a stay of the execution of the decree in G.S. 919/92. Later, that stay was vacated. The Writ Appeal filed by the 7th Respondent was dismissed on 11th December 1997. On 21st November 1997 the execution Court ordered to deliver the building on 15th December 1997. Then the 7th Respondent filed C.R.P. 2318/97 and that C.R.P. also was dismissed on 12th December 1997. Against that order the 7th Respondent filed SLP (Civil) 1687/1998 and 1688/1998 and those petitions also were dismissed on 28th August 1998. It was at this stage that the present Appellant filed claim petition E.A. 1368/1997 setting up independent tenancy. The above circumstances would improbabilise the whole case of the Appellant of occupying the building on the basis of an independent tenancy under the same landlord E.A. 1368/1997 was dismissed by the execution Court finding that no evidence was let into prove the allegation of independent tenancy right over the building. The above finding was upheld by the learned Single Judge. In the circumstances of the case we find no reasons to interfere with the above order of the learned Single Judge dismissing E.F.A. 13/1999.

At the time of argument it was represented by both sides that the landlord had already been put in possession of the building by effecting delivery through Court. The relief prayed for had already become infructuous too.

In the result this appeal is dismissed.