IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 CRP.No. 123 of 2004(E) ---------------------- AGAINST THE ORDER DATED 18/11/2003 IN EP.33/2001 IN OS.10/1981 of SUB COURT, MUVATTUPUZHA .................... REVN. PETITIONER: DECREE HOLDER/PLAINTIFFS. -------------------------------------------------- 1. LEELA VARGHESE, W/O.VARGHESE, VADAKKUMCHERY HOUSE, SREEMOOLANAGARAM KARA, CHOWARA VILLAGE, ALUVA TALUK. 2. MARY JOSEPH @ SUGUNA, W/O.THOMAS, MAKKATTUKULAM HOUSE, MUNDOOR KARA, ANJOOR VILLAGE, TRICHUR TALUK. 3. ALPHONSA W/O.VARKEY, ELANJICKAL HOUSE, ANCHERY KARA, NADATHARA VILLAGE, THRISSUR TALUK. BY ADV. SRI.DINESH R.SHENOY RESPONDENTS: JUDGMENT DEBTOR/DEFENDANTS. ---------------------------------------- 1. KUNJAN S/O.CHALAKKARA KUTTAN, (DIED) JANATHA VILASOM, PUTHENVEETTIL, RAMANGALAM KARA, MARADU VILLAGE, MUVATTUPUZHA TALUK. 2. CHINNAMMA D/O.KARTHIYAYANI, M,OOLAYIL, JANATHAVILASOM, PUTHENVEETTIL, DO. KARA, DO. TALUK. 3. C.K.KUMARAN, S/O.CHALAKKARA KUTTAN, KADATHI KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK. 4. V.K.NARAYANANA, VAZHAKKALAYIL HOUSE, ANICADU, MUVATTUPUZHA VILLAGE. *5. C.K.BHAGAVALDAS, JANATH NIVAS, KAVUMPADY, MUVATTUPUZHA, ERNAKULAM DISTRICT * 6. C.K.DEVADAS, XLI/85, OLD RAILWAY STATION ROAD, ERNAKULAM, KOCHI-682 018 *7. C.K.SATHYAN, CHALACKAL HOUSE, GOKUL, KADATHY P.O, MUVATTUPUZHA , ERNAKULAM DISTRICT *8. C.K.MOHANDAS , JANATHA NIVAS/JANATHA HOTEL, KACHERITHAZHAM, MUVATTUPUZHA ERNAKULAM DISTRICT (DIED) *9. C.K.RAGHU, CHALAKKAL HOUSE, XI/46 JANATHA NIVAS, KACHERITHAZHAM , MUVATTUPUZHA, ERNAKULAM DISTRICT. ( *ADDL. RESPONDENTS 5 TO 9 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED FIRST RESPONDENT AS PER ORDER DATED 12-12-2006 ON I.A.NO. 2966/2004) * 10 ANITHA, W/O LATE C.K. MOHAN DAS, PRANAVAM (JANATHA), PRAKASH ROAD, KADATHI, MOOVATTUPUZHA *11 NIVEDITHA, D/O LATE C.K. MOHANDAS -DO- -DO- (ADDL. RESPONDENTS 10 TO 11 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 8TH RESPONDENTS AS PER DATED 12-12-2006 ON I.A. 1206/2006) BY ADV. MURALIKRISHNAN (PAYYANNUR) THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-02- 2008 THE COURT ON 05/02/2008 PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------------------------ C.R.P No. 123 of 2004 ------------------------------------------- Dated this the 5th day of February 2008 ORDER This Civil Revision petition is directed against the order dated 18-11-2003 in E.P No. 33/2001 In O.S.No. 10/1981 on the file of the Sub court, Muvattupuzha. The revision petitioners are the legal heirs of the 1st and 2nd plaintiffs in O.S. 10/1981 and additional decree holders 3 to 5 . The respondents are the defendants/ judgment debtors in E.P 33/2001 in O.S. 10/1981. 1st and additional 8th respondents were died and legal heirs are impleaded as per order I.A Nos 2966/2004 & 1206/2006 respectively. 2. By the impugned order 18-11-2003 the Execution court held that the respondents /judgment debtors are entitled to protection under Rent Control Act and therefore the decree passed in the Original suit for recovery of possession of the plaint schedule property is without jurisdiction and hence null and void. The Execution court also held that the decree for recovery of possession was not executable and hence the prayer of the revision petitioners/ decree holders for executing the decree was rejected. 3. O.S. 10/1981 is a suit filed by the predecessors-in-interest of the revision petitioners and revision petitioners 3 to 5 as plaintiffs for redemption of an anomalous mortgage and for recovery of possession after settlement of accounts. The respondents/judgment debtors herein C.R.P No. 123 of 2004 -2- are the defendants in the suit The parties are referred to as revision petitioners and respondents for the sake of convenience. . 4. The respondents/judgment debtors defended the suit by raising the plea that Ext. R1 Udampadi in respect of the plaint schedule building was a commercial lease and not a mortgage and therefore they prayed for the benefit under Section 106 of the Kerala Land Reforms Act . In the light of the plea taken in the written statement the trial court referred the matter for adjudication by the Land Tribunal under Section 125 (3) of the Kerala Land Reforms Act. The Land Tribunal passed an order holding that Ext. R1 Udampadi is a lease and therefore the respondents/ judgment debtors are entitled to fixity of tenure under Section 106 of the Kerala Land Reforms Act. The revision petitioners/decree holders filed A.S. 372/1988 challenging the dismissal of the suit ( O.S. 10/1981) before this Court. This court by judgment and decree dated 7-7-1992 reversed the finding of the trial court holding that Ext. R1 Udampadi is not a lease and also held that it evidences only a relation that of a debtor and a creditor . 5. This court by the Preliminary decree and judgment dated 7-7- 1992 examined the nature of the Udampadi between the parties and held that the relationship between the revision petitioners/decree holders C.R.P No. 123 of 2004 -3- and respondents/judgment debtors was that of debtor and creditor and that the respondents/judgment debtors are entitled to remain in possession until the amount is discharged by the revision petitioners/decree holders by appropriation of profits of the property. It was also held that the respondents/judgment debtors are not entitled to benefits under Section 106 of the Kerala Land Reforms Act. Accordingly this Court passed a preliminary decree . The operative portion of the preliminary decree reads as follows:- A preliminary decree is passed for settlement of accounts and consequential reliefs. On such settlement if the plaintiff is found liable to pay any further amounts to the defendants or any of them, he will be liable to pay that amount to such defendants and on such payment the plaintiff is entitled to recovery of possession of the plaint schedule properties. In case no amount is due from the plaintiff , the plaintiff is entitled to get recovery of possession without any condition. In case it is found that the defendants or any of them are liable to pay to the plaintiff any amount a final decree for that amount will be passed against the defendants in favour of the plaintiff. Any of the parties will be free to move the lower court for passing a final decee as directed above. The lower court will provide for the costs in the suit, this C.R.P No. 123 of 2004 -4- appeal and final decree proceedings in the decree to be passed. 6. The respondents/ judgment debtors preferred appeal against the preliminary decree passed in A.S. 372/1988 before the Supreme Court The Honourable Supreme Court dismissed that appeal confirming the judgment and decree in A.S. 372/1988. Thereafter the revision petitioners/decree holders filed I.A. No. 39/1994 applying for a final decree and I.A. No. 1479/1994 for issuing a commission for settlement of accounts. I.A. 1479/1994 was allowed and a Chartered Accountant was appointed as the Commissioner. The respondents/ judgment debtors filed I.A. 655/ 1996 praying that the value of improvements should also be included in the final decree. I.A No. 655/1995 was dismissed on 26.03.1996 against which the respondents/judgment debtors filed C.R.P No. 1098/1996 before this Court. The said Civil Revision Petition was dismissed on 20-12-1996 against which the defendants filed a Special Leave Petition , the said special leave petition was also dismissed on 8-12-1997. Thereafter the respondents/judgment debtors filed I..A. 150/1998 on 13-2-1998 praying that they may be permitted to amend the written statement to include the plea that they are tenants of the building and therefore they are entitled to protection under the Kerala Buildings and Rent Control Act. The trial court dismissed I.A 150/1998 on 3-4-1998. The respondents/judgment debtors filed C.R.P 1247/1998. This court C.R.P No. 123 of 2004 -5- confirmed the order passed by the trial court dismissing the application for amendment. This court observed that this is a case where the preliminary decree has become final and the trial court has to pass a final decree in accordance with the preliminary decree and therefore no amendment of the written statement at the final decree stage is maintainable. .After the order has become final in C.R.P 1247/1998 another attempt was made by the respondents /judgment debtors to file an additional objection along with I.A. No. 650/1998 to accept the objection. The said application also ended in dismissal. The respondents/judgment debtors filed C.R.P 1717/1999 challenging the dismissal of I.A. No. 650/1998 and rejection of additional objection. This Court dismissed C.R.P 1717/1999 by order dated 1-9-1999. This Court held that the revision petitioners/decree holders are not entitled to raise the plea , in view of the clear finding of debtor-creditor relationship in the preliminary decree which had been confirmed by the Supreme Court of India. 7. Again the respondents/ judgment debtors filed S.L.P(C) No.19022/1999 challenging the final order in C.R.P No. 1717/1999. But that S.L.P was also dismissed confirming the decisions passed by the trial court and the High court. Thus a second time attempt to raise the plea was again negatived by the trial court and this court which was confirmed by the Supreme Court. C.R.P No. 123 of 2004 -6- 8. The matter was prolonged at the instance of the respondents/ judgment debtors. Ultimately the revision petitioners/ decree holders filed O.P 17967/2000 before this Court praying that the sub court muvattupuzha may be directed to expedite the further proceedings in I.A. 39/1994 for passing a final decree. As directed by this Court to expedite the passing of the final decree it was passed allowing the revision petitioners/ decree holders to recover the possession of the plaint schedule property together with the profits found due on accounting. 9. The respondents/ judgment debtors filed A.S. 745/2000 challenging the final decree. A.S. 745/2000 ended in dismissal. The respondents/ judgment debtors filed A.F.A. 47/2001 before this Court challenging the judgment and decree in A.S. No. 745/2000. That A.F.A. Was dismissed on 26-11-2001. Again the respondents/ judgment debtors filed R.P No. 46/2002 to review the judgment in A.F.A. 47/2001. The same was also dismissed by this Court on 30-02-2002. Thereafter the respondents/ judgment debtors filed S.L.P ( C) 1022/2002 challenging the decree and judgment in A.F.A. No. 47/2001 and order in R.P. No. 46/2002. The said Special Leave Petition has also been dismissed by the Supreme Court on 8-5-2002. Thus all proceedings leading to the final decree have become final in every sense of the word. C.R.P No. 123 of 2004 -7- 10. In the execution petition filed by the revision petitioners/ decree holders as E.P 33/2001 for enforcement of the final decree, the proceedings was dragged for no good reasons. Ultimately the revision petitioners/ decree holders filed another writ petition as writ petition No. 25685/2003 for a direction to the Sub court, Muvattupuzha to pass final orders in E.P No. 33/2001. The respondents/ judgment debtors again raised the contention that they are entitled to protection under the Rent Control Act and therefore the decree passed by the trial court is null and void The learned Sub judge accepted the contention of the respondents/ judgment debtors and held that the respondents/judgment debtors are entitled to protection under the Rent Control Act and that the decree for recovery of possession of the plaint schedule property passed by the Civil court is without jurisdiction and hence null and void. 11. O.S. No. 10/1981 was a suit filed for redemption of anomalous mortgage and for recovery of possession after settlement of accounts . At the instance of the respondents/ judgment debtors the matter was referred to the Land Tribunal and the finding entered by the Land Tribunal was recorded by the trial court. Ultimately the finding of the trial court on the basis of the Land Tribunal's order that the respondents/ judgment debtors are lessees entitled to benefit under section 106 of the Land Reforms Act was negatived by this Court in A.S. 372/1988. The decision in the said C.R.P No. 123 of 2004 -8- appeal was confirmed by the Supreme Court. Thus the preliminary decree proceedings reached a finality by the decision of the Supreme Court which confirms the decree and judgment in A.S. 372/1988. The respondents/ judgment debtors had full opportunities of recourse at the trial stage to claim whatever rights that are available in the suit. The only contention raised in the written statement is the claim under 106 of the Kerala Land Reforms Act at the preliminary decree stage. In the judgment passed by this Court in A.S. 372/1988, the finding that Ext. R1 Udambadi evidences only the relationship of a debtor and creditor which was confirmed by the Supreme Court is binding on the parties to the suit. If the respondents/ judgment debtors has a case that they are entitled to protection under the Rent Control Act, the same should have been raised in the suit. But no such plea was put forward by them either before the trial court or even before the appellate court. The impugned order passed by the trial court is manifestly illegal in as much as it had entertained such a plea. Even otherwise in view of the categorical finding recorded by the trial court that the status of the parties is that of a debtor and creditor concludes the rights of the parties. 12. The same contention was raised by the respondents/ judgment debtors unsuccessfully during the final decree proceedings. I.A. 150/1998 was filed on 13-2-1998 seeking permission to amend the written statement and to include the plea of building lease therein. The said I.A. was C.R.P No. 123 of 2004 -9- dismissed by the trial court and that was confirmed by this Court in C.R.P 1247/1998. This court also held that this is a case where the preliminary decree has become final and the trial court has to pass a final decree in accordance with the preliminary decree. Therefore no amendment in the written statement at the final decree stage is maintainable . So the attempt to insert a plea of building lease therein, by amendment of the written statement was rejected. There is no contention by the respondents/judgment debtors before the trial court claiming protection under the Rent Control Act. In such a situation the respondents/judgment debtors are not entitled to raise such a plea in the execution petition. As noted in the preceding paragraphs the respondents/judgment debtors again filed another I.A. 650/1990 for accepting additional objection. The said I.A. was also dismissed and the same was confirmed in C.R.P 1717/1999 holding that they are not entitled to raise such a plea in view of the finding of a debtor and creditor relationship in the preliminary decree. The decisions relied on by the execution Court cannot be extended to a fact situation which is not identical with the facts on hand. The execution court has exceeded its jurisdiction in making an enquiry as to whether Ext. R1 udambadi amounts to a lease transaction ignoring the finding of this Court in A.S. 372/1988 that it is not a lease but a mortgage. The trial court also went wrong in permitting the respondents/ judgment debtors to raise such a plea for the first time in execution. The execution court C.R.P No. 123 of 2004 -10- should have executed the decree in O.S. 10/1981 and order recovery of possession as prayed for in the execution stage. 13. In the result, this Civil Revision Petition is allowed. The impugned order passed by the trial court is set aside. The trial court is directed to order delivery of the plaint schedule properties to the revision petitioners/ decree holders. The final order shall be passed within two months from the date of receipt of a copy of this order. The respondents/judgment debtors shall pay a cost of Rs.5,000/- to the revision petitioners/ decree holders. HARUN-UL-RASHID, JUDGE es