IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 Ex.FA.No. 50 of 2008(C) ----------------------- OS.106/2005 of MUNSIFF COURT, MAVELIKKARA .................... PETITIONER/CLAIMANT: ------------------------------------- RANI SEBASTIAN, D/O.SEBASTIAN, KATTUMMAL PUTHENVEETTIL, PANACHIKKAD MURI, PERUNNA, CHANGANASSERY TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.G.HARIHARAN RESPONDENTS: RESPONDENTS/PETITIONER/RESPONDENTS: ------------------------------------------------ 1. MARY JAMES, W/O.JAMES AMBANAD, AMBANATTU VILLA, CHUNAKKARA SOUTH MURI, CHARUMMOOD, CHUNAKKARA VILLAGE, ALAPPUZHA DISTRICT 2. STANLY SEBASTIAN, S/O.SEBASTIAN, KUNNAMPURATHU VEEDU, KALLIMEL MURI, THAZHAKKARA VILLAGE, ALAPPUZHA DISTRICT. BY ADV. SRI.V.JOHN MANI FOR R1 SRI.MAHESH V.RAMAKRISHNAN FOR R1 THIS EXECUTION FIRST APPEAL HAVING COME UP FOR ADMISSION ON 21/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - Ex.F.A.No.50 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of August, 2008 JUDGMENT This appeal under Rule 58 (4) of Order 21 CPC is filed by one Rani Sebastian, non-party to the decree being aggrieved by the order of the execution court dismissing the application filed by her invoking Rule 101 of Order 21 CPC raising objections to the anticipated delivery of the decree schedule property, a shop room on the basis of the execution petition filed by the first respondent-decree holder. The second respondent, Stanly Sebastian is the judgment debtor and he is the appellant's husband. Though it was Rule 101 of Order 21 which was invoked expressly by the appellant, it was obvious that the appellant was seeking adjudication of her objections in anticipation of the delivery on the basis of the judgments of the Supreme Court including the judgment in Manmohan Garg v. Radha Krishna Narayan Das (1998(3) SCC 244) taking the view that anti delivery obstructions or claims by persons claiming independent rights should be enquired into and adjudicated. Ex.F.A.No.50/08 2 2. The specific prayers in the application submitted by the appellant were that the appellant be impleaded as a claimant in the execution petition and that all proceedings for delivery of the decree schedule shop room be deferred till such time as the appellant's claim is adjudicated. According to the appellant, she is in possession of the decree schedule shop room from 1999 onwards and is conducting furniture business therein. Her husband was previously a tenant of the room and was doing business. The appellant and her husband are living separately due to some family problems. The husband vacated the room in 1999 and thereafter the appellant took the room on lease on a monthly rent of Rs. 500/-. The sales tax authorities have recognised the appellant's possession of the decree schedule room and have assessed the appellant's business to sales tax. The appellant has paid a sum of Rs. 1,10,000/- to the landlord -first respondent as security. The appellant's husband who is on enemical terms with her now, has colluded with the first respondent and the decree which is being executed is the result of the collusion and the fraud played on the appellant. The appellant has instituted O.S.No.160/08 before the Ex.F.A.No.50/08 3 Mavelikkara Sub Court in respect of the decree schedule property and that suit is pending. 3. The first respondent decree holder resisted the application contending inter alia that the appellant has no rights and much less tenancy rights over the room in question. Stoutly denying the allegation of fraud and collusion levelled against him, it is contended that the appellant and her husband-judgment debtor are happily living together contrary to what is alleged. It is pointed out that the suit was stiffly contested by the appellant's husband and that there was an appeal and then a second appeal to this court which were also dismissed. The present E.A. is a device found out by the appellant and her husband after the dismissal of the second appeal by this court with the object of protracting delivery of the decree schedule property further. It is pointed out that the Subordinate Judge, Mavelikkara did not become inclined to grant the temporary injunction sought for by the appellant against delivery. 4. The learned Munsiff enquired into the application and the evidence consisted of oral testimonies of six witnesses including that of Ex.F.A.No.50/08 4 the appellant herself as PW1 on the side of the appellant. Counter evidence on the side of the respondent was nil. As requested by the appellant, the court deputed Adv.Sri.G.Ajith Kumar as Commissioner for local inspection and the Commissioner filed his report on 18/07/2008. The learned Munsiff appreciated the evidence and the circumstances which attended on the case and concluded that the appellant had failed in showing that she was having any independent right of possession or other rights in respect of the decree schedule property. Accordingly, the application was dismissed. 5. I have heard the submissions of Sri.G.Hariharan, learned counsel for the appellant and those of Sri.V.John Mani, learned counsel for the first respondent. The lower court records were made available and I have carefully scanned the evidence adduced before the court below. The learned counsel for the appellant argued that the court below went wrong in not placing reliance on the Commissioner's report. The Commissioner had reported that it was the appellant who was in actual possession of the decree schedule property and that the Furniture cum Carpentry unit functioning in the decree schedule room Ex.F.A.No.50/08 5 is being conducted by the appellant. The learned counsel argued that the court below should have noticed that the sales tax registration of the business carried on in the building stood in the name of the appellant and the court below was not justified in reading only those portions of the sales tax officer's oral evidence which were unfavourable to the appellant. In the absence of even formal counter evidence from the side of the first respondent-decree holder, the court below should have accepted the evidence adduced by the appellant for whatever it is worth, submitted the learned counsel for the appellant. Learned counsel further submitted that a substantial amount of Rs. 1,10,000/- had been paid by the appellant to the first respondent and that the first respondent having not chosen to adduce counter evidence to the petitioner's evidence regarding payment of that amount, is bound to refund that amount before he takes delivery of the decree schedule room. 6. Sri.V.John Mani, learned counsel for the respondent could ably meet all the submissions of the learned counsel for the appellant. Taking me through the evidence in the case, learned counsel submitted Ex.F.A.No.50/08 6 that the collusion between the appellant and the second respondent husband was writ large on the application submitted by the appellant. According to him, the evidence adduced by the appellant did not establish the claim of the appellant. It was absolutely unnecessary to adduce any counter evidence to the intrinsically weak evidence adduced by the appellant. 7. I have considered the rival submissions in the light of the evidence adduced before the court below by the appellant and the glaring circumstances attending on this case. The relationship between the appellant and the second respondent-judgment debtor is a most intimate one under the social conditions which prevail in this country. The oral evidence adduced by the appellant regarding the strained relationship between her and her husband does not inspire any confidence in my mind. It is after a long drawn out legal battle with the second respondent that the first respondent could obtain the decree against the second respondent judgment debtor. The decree was for eviction and for realisation of future rent/damages for use and occupation at the rate of Rs.800/- per mensum. Against that decree the Ex.F.A.No.50/08 7 second respondent preferred appeal to the District Court, Mavelikkara. The appeal was dismissed on 08/04/2008. The second respondent did not leave the matter there. He preferred a second appeal as R.S.A.No.492/08 to this court which was dismissed on 19/06/2008. It is thereafter that the execution petition was filed by the first respondent decree holder and considering that E.P. delivery was ordered to be effected on 28/6/2008 and significantly the appellant preferred the present application seeking stay of delivery on 28/06/2008. The appellant sought to prove her case of holding the decree schedule room on the basis of a rental arrangement with the first respondent landlord since 1999 on a monthly rent of Rs. 500/- and security amount of Rs.1,10,000/- by the oral evidence of herself as PW1 and also of PW3. It will be immediately observed that the plaintiff's version of having taken the decree schedule room from the first respondent decree holder on a monthly rental of Rs.500/- is inherently improbable. 1999 is a point of time when the room was outstanding on lease with the second respondent on a monthly rent of Rs. 800/- . It totally strange that at that time the first respondent would agree to lease out the same room and Ex.F.A.No.50/08 8 that too to the wife of the tenant for a lesser rent. As indicated by the learned Munsiff payment of Rs. 1,10,000/- as security and agreement to pay a monthly rent of Rs. 500/- are all matters on which in the ordinary course of events there will be documentary evidence. If not direct documents executed between the first respondent and the second respondent, there will be indirect or collateral documents. The payment of Rs. 1,10,000/- certainly a substantial amount, should have been borne out by collateral documents at the appellant's disposal. 8. I do not find any infirmity in the learned Munsiff's viewing the appellant's case of payment of Rs. 1,10,000/- as security and Rs. 500/- as rent with suspicion in the absence of documentary evidence. As noticed by the learned Munsiff, at the time when according to the appellant the new rental arrangement between her and the first respondent had come into force, the second respondent-the appellant's husband was resisting the proceedings for eviction against him and had been regularly making remittances towards rent in arrears for salvaging the shop room from eviction. As noticed by the learned Munsiff, it was highly improbable on the part of the tenant if he had Ex.F.A.No.50/08 9 ceased to have interest in the room, to continue to remit the rent which had fallen into arrears. 9. Having re-appreciated the oral evidence adduced by PWs 1 to 6, I am in complete agreement with the impressions gathered by the learned Munsiff, from the same. It is true that the Advocate Commissioner's report was ignored by the learned Munisff altogether on the reason that the Commissioner was not examined. But on reading through the Commissioner's report which is produced as Annexure 1 along with the memorandum of appeal, I find that even that report is not capable of proving the appellant's case that she is the tenant in possession of the room since 1999 . At best, the report would go to show that the business at the time of inspection is being managed by the appellant. But as already noticed, the appellant is the wife of the judgment debtor and the question is whether her case of independent right of tenancy since 1999 over the shop room has been established. Agreeing with the learned Munsiff, I hold that the appellant has miserably failed in establishing that case. The result is that the appeal will stand dismissed. The order of Ex.F.A.No.50/08 10 stay issued by this court will continue till 30/09/2008. The Execution Court will post the case on 01/10/2008. If the first respondent is not put back in possession of the premises even by that date, the court will issue delivery warrant forthwith to the Amin and ensure that delivery is effected. Parties are directed to suffer their costs in this appeal. It is also made clear that nothing stated in this judgment will stand in the way of the Subordinate Judge's Court, Mavelikkara disposing of the suit filed by the appellant in accordance with law and the appellant instituting any fresh suit against the first respondent on the basis of genuine cause of action if any. PIUS.C.KURIAKOSE JUDGE sv. Ex.F.A.No.50/08 11