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Mr. S.N. Satyanarayana, J. - Judgment-debtor Nos. 1 and 2 in Execution Case No. 110 of 2016 on the file of the Chief Judge, Court of Small Causes, Bengaluru, have come up in this revision petition impugning the order dated 16-2-2016, wherein the application filed by them under Section 151 of the Civil Procedure Code, 1908 for deferment of the execution proceedings till disposal of the appeal in RFA No. 1706 of 2015, which is pending before this Court, has been rejected.
Petitioners herein are respondents in HRC No. 168 of 2011 on the file of the Court of Small Causes, Bengaluru, wherein an eviction petition was filed by the respondent herein under Sections 27(2)(r), 31(1)(c) and 5 of the Karnataka Rent Act, 1999, seeking eviction of the petitioners herein from the petition schedule premises on the ground that the same is required for his self-occupation and respondents (petitioners herein) are chronic defaulters in payment of rent.
The said eviction petition was opposed by respondents (petitioners herein) contending that: in the year 1994, the petitioner (respondent herein) offered to sell the entire schedule property in favour of their father, B. Narayan Rao, for a sale consideration of Rs. 8,00,000/- and consequently, entered into an agreement of sale with their father on 10-2-1994 and received part of the consideration amount i.e., Rs. 3,00,000/- on the said date and further, received Rs. 2,00,000/- on 15-6-1994, Rs. 1,00,000/- each on 25-6-1994 and 10-7-1994, thus totalling to Rs. 7,00,000/-; they are not the tenants in respect of the petition schedule premises, but agreement holders to purchase the same; in pursuance of the agreement dated 10-2-1994, their father had effected repairs to the entire building in 1994 by spending a sum of Rs. 32,000/-; petitioner was collecting rent of Rs. 70/- per month from them and though he has received rent up to the month of May 2011, he has not issued any receipt; the agreement dated 10-2-1994 was not within their knowledge as the same was kept with their elder paternal uncle at Mysore; after the death of their father in 1996, they along with their mother and their brother have continued to reside in the petition premises; they were ready and willing to pay the balance sale consideration and notified as such to the petitioner and since the petitioner tried to dispossess them from the petition property, they have approached the City Civil Court in O.S. No. 7727 of 2011 seeking specific performance of agreement of sale dated 10-2-1994. Hence, they sought for dismissal of the petition in HRC No. 168 of 2011 with costs.
It is clear from the material on record that subsequent to filing of HRC No. 168 of 2011 by the respondent herein on 14-7-2011, petitioners herein, their mother, Smt. Venkubai, and their brother, Vijaya Rao, filed suit in O.S. No. 7727 of 2011 on 31-10-2011, seeking specific performance of the agreement of sale dated 10-2-1994 with a direction to the defendant (respondent herein) to execute the sale deed in respect of the suit schedule property by receiving the balance consideration amount of Rs. 1,00,000/-. In the said suit, petitioners herein, plaintiffs 2 and 3, had taken a specific plea to the effect that though they were in possession of the suit schedule property as tenants prior to 10-2-1994, in view of the agreement of sale entered into between their father, late B. Narayan Rao and the defendant (respondent herein) on 10-2-1994, wherein the defendant had agreed to sell the suit property in favour of their father for a valuable consideration of Rs. 8,00,000/- and in pursuance of the same, received an advance amount of sale consideration of Rs. 3,00,000/- on the said date and subsequently, received amounts of Rs. 2,00,000/- on 15-6-1994; Rs. 1,00,000/- on 25-6-1994 and Rs. 1,00,000/-, in all Rs. 7,00,000/-, they continued to be in possession of the suit property as agreement holders to purchase the same and not as tenants. Petitioners herein reiterated the averments made in their statement of objections filed to the eviction petition, in the plaint. It is their case that though there was no specific delivery of possession as stipulated under Section 53 of the Transfer of Property Act, 1882, nevertheless, it was understood by the parties that their possession subsequent to 10-2-1994 was under the agreement of sale. It is seen that with such pleadings, the suit in O.S. No. 7727 of 2011 was proceeded.
The said suit was contested by the defendant-respondent herein by filing written statement inter alia stating that he is the absolute owner of the suit schedule property. Late Narayan Rao was the tenant in respect of the suit property and after his demise, petitioners herein and their families have been residing in the suit property as the legal representatives of the original tenant. He has denied execution of the agreement of sale dated 10-2-1994 in favour of late B. Narayan Rao and receipt of amounts as alleged in the plaint. He contended that petitioners herein had paid rent up to the end of March 2008 only and were liable to pay rent from April 2008. He has referred to eviction case in HRC No. 168 of 2011 filed by him against the petitioners herein (plaintiffs 2 and 3) and accordingly, sought dismissal of the suit with costs.
It is pertinent to note that in the statement of objections filed by petitioners herein to the eviction petition in HRC No. 168 of 2011, it is stated in paragraph 2 at page 2 as under:
"Further during the year 1994, late Narayan Rao had effected repairs to the entire building by spending a massive sum of Rs. 32,000/- (in those days standards) and the petitioner was collecting stipulated rent at the rate of Rs. 70/- p.m. without granting any receipts up to the month of May 2011."
The defence taken by respondents in the eviction proceedings that they were paying rent of Rs. 70/- per month to the petitioner (respondent herein) up to May 2011 is inconsistent with the plea put forth by them in the suit in O.S. No. 7727 of 2011, where they have sought for specific performance of the agreement of sale dated 10-2-1994 on the ground that after the death of B. Narayan Rao, the father of plaintiffs 2 to 4, they continued to be in possession of the suit property as agreement holders to purchase the same and not as tenants.
The petition filed by the respondent herein in HRC No. 168 of 2011 came to be dismissed by learned Chief Judge, Court of Small Causes, Bengaluru, by order dated 21-9-2013 holding that validity or otherwise of the agreement dated 10-2-1994 could not be decided in the eviction proceedings and till the suit, O.S. No. 7727 of 2011 filed by petitioners herein was decided, they were entitled to possession of the petition property as envisaged under Section 53-A of the Transfer of Property Act. Being aggrieved by the same, respondent herein filed HRRP No. 141 of 2013 before this Court.
A co-ordinate Bench of this Court, by order dated 24-2-2015, allowed the petition in HRRP No. 141 of 2013 by setting aside the order passed by the learned Chief Judge, Court of Small Causes, Bengaluru, in HRC No. 168 of 2011, dated 21-9-2013 and while allowing the said HRC petition in the revision, time was granted to petitioners herein till 31-12-2015 to vacate and hand over vacant possession of the suit property to the petitioner (respondent herein) and it was observed as under:
"It is made clear that possession that would be handed over by the respondents to the petitioner herein is subject to the outcome of the suit filed by them for relief of specific performance before the Trial Court in O.S. No. 7727 of 2011."
Further, learned Judge of the City Civil Court was directed to dispose of the suit, O.S. No. 7727 of 2011, on or before 31-10-2015.
The Trial Court, on the basis of oral and documentary evidence adduced by the parties, has held that plaintiffs including petitioners herein have failed to prove the execution of the agreement of sale dated 10-2-1994, Ex. P. 2, by the defendant (respondent herein) in favour of late Narayan Rao, the father of plaintiffs 2 to 4, and receipt of amounts by the defendant in pursuance of the said agreement as alleged in the plaint and consequently, held that plaintiffs were not entitled for the decree of specific performance of agreement of sale dated 10-2-1994 and accordingly, dismissed the suit by judgment dated 30-10-2015. Being aggrieved by the same, plaintiffs preferred R.F.A. No. 1706 of 2015 before this Court and the same is pending consideration.
It transpires from the records that pursuant to the order dated 24-2-2015 passed by this Court in HRRP No. 141 of 2013, execution is levied by the respondent herein against petitioners herein in Ex. No. 110 of 2016 on the file of Court of Small Causes, Bengaluru (SCCH No. 1), wherein petitioners herein entered appearance and filed an application under Section 1.51. of Civil Procedure Code, 1908 seeking to defer the execution proceedings till the disposal of the appeal in RFA No. 1706 of 2015. While seeking such relief in the said application, petitioners herein placed reliance on the order passed by co-ordinate Bench of this Court in HRRP No. 141 of 2013, more particularly, to the observations referred to above and tried to interpret it in such a way that since they have not sought for possession of the suit property in O.S. No. 7727 of 2011 and in view of the fact that they continued in possession of the suit property as agreement holders subsequent to the agreement of sale dated 10-2-1994, eviction order should not be given effect to until RFA No. 1706 of 2015 is decided by this Court. However, this Court is not agreeable to that position as what was observed by co-ordinate Bench while deciding HRRP No. 141 of 2013 is to the effect that if petitioners herein are evicted from the petition property in pursuance of the order dated 24-2-2015 and in the event, if they succeeded in the suit filed by them in O.S. No. 7727 of 2011, they would be entitled to possession. The suit, O.S. No. 7727 of 2011, filed by petitioners herein has been dismissed by the Trial Court by judgment dated 30-10-2015, which is under challenge in RFA No. 1706 of 2015.
In that view of the matter, this Court find that no justifiable grounds are made out to set aside the order passed by the learned Chief Judge, Court of Small Causes, Bengaluru, in Execution No. 110 of 2016, dated 16-2-2016, wherein the application filed by judgment-debtors-petitioners herein has been rejected. In view of the observations made by this Court in clarifying the order dated 24-2-2015 passed by co-ordinate Bench of this Court in HRRP No. 141 of 2013, the question of decree-holder-respondent herein awaiting till disposal of RFA No. 1706 of 2015 to take possession of the suit schedule property pursuant to the delivery warrant issued in Execution No. 110 of 2016 does not stand to reason.
Accordingly, this revision petition is dismissed and liberty is reserved to the respondent herein to execute the warrant, if any, issued in his favour in Execution No. 110 of 2016.