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Judgment
These regular first appeals are filed by some of the obstructors in Ex.No.142/2014 being aggrieved of the order dated 10.06.2016 by which the obstruction applications came to be dismissed passed by the XI Additional City Civil Judge, Bangalore City.
The facts to be stated in brief are as follows:
The decree-holders filed suit O S No.1848/2000 on the file of XI Additional City Civil Judge, Bangalore City for recovery of actual vacant possession of the schedule property from the judgment debtors and also for mesne profits. It was the case of the decree holders that schedule properties bearing Nos.79 & 80 (Old No.12 & 13) situated at M G Road, Bangalore are of their joint ownership. They were leased in favour of the first judgment debtor through a registered lease deed dated 3.7.1969 for a period of 32 years. As per the lease deed, the first JDr. was entitled to demolish the building then in existence and to put up such structure as they deem fit, which shall not be less than 40,000 sq. ft., On expiry of the lease period the J Dr. No.1 was required to hand over the suit schedule property to the decree holders together with all the buildings, fittings, fixtures etc., The J Dr No.1 was also entitled to sublease the building either wholly or in part in favour of third parties subject to the condition that the period of lease/sub-lease shall not extend beyond the period of lease.
The J Dr. No.1 instead of surrendering the actual vacant possession tried to create third party rights and hence the decree holders filed the said suit.
The J Dr. No.1 contested the suit. The registered lease deed was admitted. It was contended that there was an assurance by the first lessor since died in the year 1989 to continue the tenure even thereafter. The partners of the J Dr No.1 resolved to pay Rs.35,000/- without any recovery from the monthly rentals, but with the specific and definite understanding that the lease will be extended by the decree holders for a further period of 10 years. The father of the decree holders encashed the two cheques for Rs.25,000/- and Rs.10,000/-
respectively and expressly agreed for extension of lease for a further period of 10 years. In order to violate the said terms, it is alleged, the decree holders have filed the above suit.
The trial court decreed the suit, directing the judgment debtors to vacate, deliver and handover the actual possession of the schedule properties to the plaintiffs within a period of one month from the date of decree, etc.,
Being aggrieved, the judgment debtors filed R F A No.596/2008 and one more R F A No.1308/2008 was filed by State Bank of Mysore, who was not a party to the suit proceedings. This court by the judgment dated 28.6.2013 dismissed both the regular appeals.
The decree holders filed Ex No.142/2014 on the file of the XI Addl. City Civil Judge, Bangalore City for execution of the above decree. In the said execution case, the appellants and others filed obstruction applications under Order 21 Rule 97 to 1000 of C P C asserting that they are in possession of different tenements being the tenants under the first J Dr. they being not parties and there is no decree against them, the same cannot be executed and J.Drs. are not in actual possession and enjoyment of the property or premises, in respect of which, the decree was obtained. The D Hrs. cannot evict the tenants in occupation without due process of law. Hence they prayed to record their obstruction and provide them an opportunity to establish that the decree cannot be executed against them.
The D Hrs. filed objections to the obstruction applications. The objectors claim to be sub-tenants of the J.Drs.
It is true, the applicants were not parties to the eviction proceedings. The Hon''ble High Court in R F A No.596/2008 has unequivocally held that the lease between the D Hrs. and J Drs.
has expired and the judgment and decree binds the sub-tenants including the objectors herein. The Hon''ble High Court also observed that claims of the objectors, if any, will lie against the J.Drs. and not against the D.Hrs. The applications filed by the objectors are barred by res judicata. The applicants were fully aware of the proceedings in O S No.1848/2000 but choose to stay out of it. As such, it is not open for them to now contend that they were not a party to the said suit and thus judgment and decree is not binding on them.
The court below rejected the obstruction applications by the impugned order, being aggrieved of which, the present regular first appeals are filed.
I have heard the learned counsel for the appellants and the learned counsel for the respondents and perused the impugned orders passed by the court below.
The learned counsel for the appellants, more or less, raised similar contentions. It is contended that there is no decree against the appellants, without termination of their tenancy and without filing any suit for ejectment, they cannot be evicted. It is further contended that the decree holders cannot seek actual physical possession of the shop premises in the occupation of the appellants when admittedly there is no order for eviction of the appellants. The decree holders can seek only symbolic possession and not the actual possession. If the persons paying the deposits are still in occupation of the lease premises, which necessarily means that there should be attornment of tenancy between the decree holders and tenants.
On the other hand, the learned counsel for the respondents submitted to dismiss the appeals. This court has already observed in the judgment passed in R F As. that the judgment and decree passed as against the judgment debtors, is also binding on the sub-tenants. Some of the sub-tenants approached the Hon''ble Apex Court, as against the judgment and decree passed in the regulr appeals, but withdrew the same.
Therefore, there is absolutely no merit in any of the contentions raised by the appellants. Hence the learned counsel pray for dismissal of the appeals.
The point that arises for consideration is, whether the impugned order suffers from any legal infirmity calling for interference by this Court? My answer would be in the negative for the following reasons.
The lease deed executed by the decree holders in favour of judgment debtors has been admitted. Terms of the lease deed are not in dispute. The judgment debtors though contended that period of the lease was agreed to be extended, it was not substantiated. The appellants claim to be tenants under the J Drs. and therefore they are the sub-lessees. The court below has rightly come to the conclusion that sub-lessees are not necessary parties in a suit for ejectment placing reliance on the decision of the Hon''ble Apex Court in AIR 1964 SC 1889 and therefore the decree passed against tenant binds the sub-
tenant also. This court while disposing of the regular appeals specifically framed point No.4 as to whether the judgment and decree passed in O S No.1848/2000 binds the appellant/one of the sub-tenant in R F A No.1308/2008. This court observed that the contention of sub-tenant is difficult to accept. The tenancy having attorned in favour of first J.Dr. the appellant became the tenant under the first J.Dr. The decree passed in the original suit binds the sub-tenant also.
The appellants contend that they were not aware of the suit proceedings between the DHrs. & JDrs. It is their case that they are all carrying on business in the suit schedule property. When that is their specific case, their case that they were not aware of the suit proceedings against the J.Drs. cannot be accepted and rightly was not accepted by the court below.
The appellants watched the proceedings in the original suit for decades and now in order to hurdle taking of actual possession by the D Hrs. have filed the obstruction applications, which cannot be entertained.
After reconsidering the entire materials on record, I am of the view that the appellants have failed to make out a case that there is any infirmity in the order passed by the court below. The court below has properly considered the entire materials on record and is justified in rejecting the applications filed by the appellants.
Accordingly, these appeals are rejected. The parties are directed to bear their own costs.