IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 OP (RC).No. 3760 of 2011(O) ----------------------------------- RCOP.1/2003 of PRL. MUNSIFF COURT., KOTTAYAM .................... PETITIONER --------------- SUNDAR K.KURIAN, S/O.K.P.POTHEN, KONDEKERIL HOUSE, VELOOR P.O., KOTTAYAM. BY ADV. SRI.JOSE PALLATTUKARAN RESPONDENT(S): --------------------- 1. SAINABA SALEH, PUTHENPARAMBIL HOUSE, MARKET ROAD, THIRUNAKKARA, KOTTAYAM-686 507. 2. NAZIEEN SALEH, PUTHENPARAMBIL HOUSE, MARKET ROAD, THIRUNAKKARA, KOTTAYAM-686 507. 3. NIAZ SALEH, PUTHENPARAMBIL HOUSE, MARKET ROAD, THIRUNAKKARA, KOTTAYAM-686 507. 4. RAJU K.PHILIP, KONDEKERIL HOUSE, VELOOR P.O., KOTTAYAM-686 501. 5. K.K.POTHEN, KONDEKERIL HOUSE, SOUTH PAMPADY, KUTTICKAL P.O., KOTTAYAM-686 502. THIS OP (RENT CONTROL) HAVING COME UP FOR ADMISSION ON 19/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(CR). NO. 3760/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE AUDITED TRADING PROFIT & LOSS ACCOUNTS AND BALANCE SHEET AS ON 31/03/1991 SUBMITTED BEFORE THE INCOME TAX OFFICE AND SALES TAX OFFICE, KOTTAYAM. P2: COPY OF THE CERTIFICATE DATED 01/01/2009 ISSUED BY THE DEPARTMENT OF INDUSTRIES. P3: COPY OF THE BILL BEARING NO.974 DATED 08/08/2011 SUBMITTED BEFORE THE DISTRICT COURT, KOTTAYAM. P4: COPY OF THE ELECTRICITY BILL BEARING CONSUMER NO.668 ISSUED TO THE PETITIONER. P5: COPY OF THE RELEVANT PAGES OF THE TREASURY PASS BOOK IN THE NAME OF THE PETITIONER. P6: COPY OF THE EXECUTION PETITION DATED 10/06/2011 BEARING RCOP NO.1/2003. P7: COPY OF THE ORDER DATED 09/11/2011 EA NO.260/2011 IN EP NO.106/2011 IN RCOP NO.1/2003 OF THE RENT CONTROL COURT, KOTTAYAM. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs PIUS C. KURIAKOSE & K. HARILAL,JJ. .................................................................... O.P.(RC)NO.3760 OF 2011 ................................................................... Dated this the 19th day of November, 2011. JUDGMENT Pius C. Kuriakose, J. Under challenge in this original petition filed under Article 227 is Ext.P7 order passed by the Principal Munsiff Court, Kottayam in E.A.No.260/11 in E.P.No.106/11 in RCOP.No.1/2003. E.P.No.106/11 was filed before the Principal Munsiff, Kottaym seeking execution of an eviction order which was passed by the Rent Control Court, Kottyam and was confirmed by the Rent Control Appellate Authority, Kottayam and by this Court also in RCR.No.164/2009. We have incorporated the judges papers relating to RCR.No.164/2009 and we find that this Court by order dated 31.7.2009 by dismissing the RCR confirmed the eviction order which had been concurrently passed by the Rent Control Court and the appellate authority on the grounds of arrears of rent and subletting. Thus the concurrent finding is that the building has been sublet by the alleged tenants - K.P. Kuruvila and Raju K. Philip in favour of the subtenant. It O.P.(RC)NO.3760 OF 2011 : 2 : is not disputed before us that the eviction order passed against the respondents in the rent control petition has attained finality. The petitioner preferred E.A.No.260/11, as it was noticed that the landlords (respondents 1 to 3) were not entitled to take delivery of the building through execution proceedings. The E.A was filed invoking Section 47 and Section 151 as well as Order XXI and Rule 58 of the Code of Civil Procedure. The main contention was that as the eviction order has been passed without the petitioner a partner of a firm which was the real tenant and hence a necessary party to the eviction proceedings, the eviction order is vitiated. The learned Munsiff under the impugned order has repelled the claim/obstruction giving reasons which are apparently cogent. A reading of the order passed by the Rent Control Court, the judgment of the appellate authority and the order of this Court in RCR.No.164/2009 will show that the respondents in the RCOP had also taken up a contention that the real tenant is a partnership firm and that the above contention was repelled. In fact the petitioner by raising the present O.P.(RC)NO.3760 OF 2011 : 3 : claim is actually trying to resurrect a contention which was repelled concurrently by the statutory authorities under the Act and this Court under Rules. Gauging Ext.P7 by the parameters which are applicable to exercise of the visitorial jurisdiction under Article 227, it is very clear to us that Ext.P7 is not an order which is liable to be visited under the visitorial jurisdiction. What ever that be, Ext.P7 even according to the counsel for the petitioner, is an order passed by the execution court in execution of an eviction order passed in a rent control proceedings. Section 14 of the Act 2 of 1965 provides remedy to the aggrieved against the orders passed in execution. Even assuming that Ext.P7 is the result of an adjudication under Order XXI Rule 58, the remedy of the petitioner lies elsewhere and is not to invoke the visitorial jurisdiction of this Court under Article 227. Lest, our findings should cause any prejudice to the revision petitioner in any proceedings which the petitioner may initiate against Ext.P7 elsewhere. We restrain ourselves from saying anything on the merits of O.P.(RC)NO.3760 OF 2011 : 4 : Ext.P7. The original petition is dismissed in limine. However, we direct the execution court to keep in abeyance the proceedings for delivery for a period of 10 days from today. PIUS C. KURIAKOSE, JUDGE. K. HARILAL, JUDGE. cl