IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 OP(C).No. 1509 of 2011(O) ------------------------- AS.113/2009 of DISTRICT COURT, ERNAKULAM OS.343/2005 of MUNSIFF COURT, ERNAKULAM .................... PETITIONERS :- ------------------------ THE ERNAKULAM THIRUMALA DEVASWOM, T.D.EAST ROAD, ERNAKULAM, REP.BY ITS PRESENT MANAGING COMMITTEE MEMBERS 1 TO 5. 1. P.RANGADASA PRABHU, S/O. LATE PADMANABHA PRABHU, MANAGING ADHIKARI. 2. P.JAYAPRAKASH PRABHU, S/O. LATE P.R.SREENIVASA PRABHU, MANAGING ADHIKARI. 3. T.G.KAMALNATH SHENOY, S/O. LATE T.V.GOVIND SHENOY, MANAGING COMMITTEE MEMBER. 4. V.RAJKUMAR KAMATH, S/O. A.V.KAMATH, MANAGING COMMITTEE MEMBER. 5. S.SUDHAKARA SHENOY, S/O. SREENIVASA SHENOY, MANAGING COMMITTEE MEMBER. BY ADV. SMT.R.RANJINI RESPONDENT(S) :- --------------------------- 1. M/S. A.R.PRABHU & BROTHERS, CC NO.40/1971, BROADWAY, ERNAKULAM, KOCHI-31, REP. BY THE MANAGING PARTNER. 2. VIJAYA K.PRABHU, MANAGING PARTNER, M/S. A.R.PRABHU & BROTHERS, CC NO.40/1969 & 40/1971, COCHIN CORPORATION, BROADWAY, ERNAKULAM, KOCHI-31, RESIDING AT LAKSHANA, CONVENT ROAD, COCHIN-682 035. OP(C).No. 1509 of 2011 3. R.SANTHA PRABHU, PARTNER, M/S. A.R.PRABHU, BROADWAY, ERNAKULAM, RESIDING AT SREE MAHALAKSHMI, T.D.WEST ROAD, KOCHI-35. ADV. SRI.M.P.RAMNATH FOR R1 & R2 SRI.S.RENJITH FOR R3 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2011, ALONG WITH OPC NO. 1511 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt OP(C).No.1509 OF 2011 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the decree dated 29.10.2008 in O.S.No.343 of 2005. Ext.P2 :- Copy of the judgment dated 29.10.2008 in O.S.No.43 of 2005. Ext.P3 :- Copy of the order dated 24.6.2009 in I.A.No.4229 of 2009 in A.S.No.113 of 2009. Ext.P4 :- Copy of the Execution Petition. Ext.P5 :- Copy of the objection to the Execution Petition. Ext.P6 :- Copy of the order dated 11.10.2010. Ext.P7 :- Copy of the objection dated 1.11.2010. Ext.P8 :- Copy of the order dated 25.1.2011. Ext.P9 :- Copy of the order dated 11.10.2006 of the court of 1st Addl. District Judge, in O.P.(Arb) 242 of 2005. Ext.P10 :- Copy of the order of the Hon'ble High Court of Kerala, in Arb.Appeal No.1 of 2007. Ext.P11 :- Copy of the judgment dated 30.3.2010 in W.P.No.27617 of 2006. Respondent's Exhibits :- Ext.R(1)-1 :- Copy of the power of attorney dated 1/9/2010 executed by the 2nd respondent. Ext.R(1)-2 :- Copy of the judgment of this Hon'ble Court in W.P.(C)No.22408/2006 dated 30/8/2006. Ext.R(1)-3 :- Copy of the order dated 11/10/2006 in I.A.No.1917/2006 in O.P. (Arbitration) No.242/2005 of the Hon'ble 1st Additional District Court, Ernakulam. Ext.R(1)-4 :- Copy of the judgment of the Division Bench of this Hon'ble Court dated 30/06/2009 in Arb A.No.01/2007. OP(C).No. 1509 of 2011 Ext.R(1)-5 :- Copy of I.A.No.1917/2006 in O.P.No.(Arbitration)No.242/2005 before the Hon'ble 1st Additional District Court, Ernakulam. Ext.R(1)-6 :- Copy of the plaint in O.S.343/2005. Ext.R(1)-7 :- Copy of written statement filed by Ramananda Prabhu on 25/06/2005 in O.S.343/2005. Ext.R(1)-8 :- Copy of the written statement filed by respondents 1 & 2 herein as defendants 2 & 3 in O.S.343/2005. Ext.R(1)-9 :- Copy of the memorandum of appeal in AS 113/2009 before the Hon'ble District Court Ernakulam. //True Copy// P.A. to Judge THOMAS P. JOSEPH, J. ~~~~~~~~~~~~~~~~ O.P.(C). Nos.1509 & 1511 of 2011 ~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 13th day of July 2011 J U D G M E N T These original petitions are filed under Article 227 of the Constitution arise from Ext.P8, order (in both the cases) passed by the learned Principal Munsiff, Ernakulam in E.P.Nos.434 of 2009 and 435 of 2009, respectively closing the execution petitions for the time being reserving right of petitioner/plaintiff/Decree Holder to file fresh execution petitions. 2. Petitioner, common in both the cases has obtained decree for eviction of the first defendant in O.S.No.343 of 2005 and 344 of 2005 of the court of learned Munsiff, Ernakulam (the decrees were sought to be executed in the court of learned Principal Munsiff). According to the petitioner, the shop rooms which are subject matter of the said suits were taken on rent by the first defendant for his O.P.(C). Nos.1509 & 1511 of 2011 -: 2 :- business and he later, sub let the shop rooms to other persons with whom a partnership was formed as a camaflague to cover up the sublease. It was also the case of petitioner that later, there was some sort of a reconstitution of that partnership whereby additional defendants 3 and 4 in the suit were also inducted. The 2nd defendant, the Partnership Firm and additional defendant 3, the Managing Partner contended in both the suits that the tenant of the shop rooms is the Partnership Firm. However, learned Munsiff found that first defendant is the tenant and accordingly ordered eviction in both the cases as per Exts.P1 and P2, decree and judgment (in both the cases) dated 29.10.2008. The 2nd defendant and additional 3rd defendant have challenged those judgments and decrees in A.S.Nos.112 and 111 of 2009 which are pending in the court of learned Additional District Judge, Ernakulam (I am told, those appeals are now posted on 29.8.2011 for hearing). When the appeals were preferred learned Addl. District O.P.(C). Nos.1509 & 1511 of 2011 -: 3 :- Judge on 24.6.2009 granted stay of execution subject to certain conditions which included that the first defendant will deposit certain amount within the prescribed time. First defendant who did not even challenge the decree and judgment, did not however comply with the said conditions. Thereon, petitioner filed E.P.Nos.434 of 2009 and 435 of 2009 in O.S.Nos.343 of 2005 and 344 of 2005 respectively to execute the decrees for eviction. At that stage, the additional 3rd defendant and another person said to be a partner of the 2nd defendant, firm filed Arbitration O.P.No.242 of 2005 in the court of learned District Judge, Ernakulam under Sec.9 of the Arbitration and Conciliation Act (for short, “the Act”) seeking interim relief pending adjudication of the inter-se dispute between the partners of the firm in arbitration proceeding. Learned 1st Additional District Judge, Ernakulam on October 11, 2006 passed Ext.P9, order as per which it was directed that the question regarding eviction from the shop rooms (belonging to the O.P.(C). Nos.1509 & 1511 of 2011 -: 4 :- petitioner) is pending adjudication (in the appeals) and in the circumstance, it is open to the said court under Sec.9 of the Act to issue orders for preservation of the subject matter of arbitration as arbitration proceedings are in progress. Accordingly, it was directed that pending adjudication of the dispute, if the premises is allowed to be surrendered to the landlord (ie; the petitioner herein), that will defeat the interest of petitioners in O.P.No.242 of 2005. The Advocate Commissioner who by then had taken custody of the keys of the shop rooms was directed to surrender the same before learned Additional District Judge (in O.P.No.242 of 2005) for safe custody until further orders. Ext.P9, order was challenged in the court but, confirmed by Ext.P10, judgment. 3. Execution proceedings before the learned Principal Munsiff, Ernakulam continued. Referring to Ext.P9, order passed by the learned Addl. District Judge, learned Principal Munsiff addressed learned Addl. District O.P.(C). Nos.1509 & 1511 of 2011 -: 5 :- Judge requesting to hand over the keys of the shop rooms to the learned Principal Munsiff. That was replied by the learned Addl. District Judge in tune with Ext.P9, order. Thereon, learned Principal Munsiff closed the execution petitions with the observation first above stated. Those orders are under challenge in these original petitions. 4. Learned counsel for petitioner contended that petitioner is not interested in the inter-se dispute between partners or persons claiming to be partners in the 2nd defendant firm as the rental arrangement as found by the learned Additional Munsiff in the suits was between petitioner and the first defendant and hence, so far as petitioner is concerned, its tenant is none other than the first defendant against whom petitioner has obtained decrees for eviction as seen from Exts.P1 and P2. It is also submitted by learned counsel that the first defendant has not challenged the said judgment and decree by way of appeal and hence, decree to the extent it concerned the O.P.(C). Nos.1509 & 1511 of 2011 -: 6 :- first defendant has become final. Since the first defendant has not complied with the conditions in the order of stay granted by the learned Additional District Judge in the appeals, those orders are not in force. Hence there is no impediment in executing the decrees against the first defendant. It is further pointed out that the shop rooms are remaining closed since long time and that will affect even its structural stability. In the circumstances, it is necessary that the keys of the shop rooms are handed over to the petitioner. Learned counsel submitted that a huge amount is due to the petitioner by way of rent arrears. But nothing has paid. In the circumstance, it is submitted that the executing court was not correct in closing the execution petitions. Learned counsel for petitioner has sought for appropriate directions to the learned Principal Munsiff to proceed with the execution of the decrees. 5. In response, learned counsel for respondents 1 and 2 has contended that since the tenancy was in favour of O.P.(C). Nos.1509 & 1511 of 2011 -: 7 :- the 2nd defendant (partnership firm) taken through the first defendant it was within the right of the defendants 2 and 3 to challenge the decrees for eviction in the appeals since the decrees ultimately affected their tenancy right. It is contended that while granting the order of stay, there was no condition imposed on defendants 2 and 3, the appellants in the appeal and hence merely because the first defendant who according to the learned counsel is colluding with petitioner has not complied with the conditions, defendants 2 and 3 and other partners of the firm may not be evicted from the shop rooms. It is pointed out by learned counsel that so far as non payment of rent is concerned, there was no direction or order requiring any of the other defendants in the suit to pay any amount. It is also pointed out by learned counsel that the executing court has only closed the execution petitions for the time being which could be reopened after the appeals challenging in Exts.P1 and P2 decrees are disposed of by the learned Additional District O.P.(C). Nos.1509 & 1511 of 2011 -: 8 :- Judge. 6. Having heard learned counsel on both sides and gone through the relevant records placed before me, I have to note that learned Additional District Judge by Ext.P9, order has taken custody of the keys of the shop rooms until the question regarding eviction is decided by the appellate court dealing with the appeals arising from Exts.P1 and P2, and that order (Ext.P9) has been confirmed by this Court by Ext.P10, judgment. In the circumstance, parties have to await the decision of learned Addl. District Judge in the appeals arising from Exts.P1 and P2, judgments and decrees. I must also bear in mind that it is not as if learned Principal Munsiff has negatived the right of petitioner to execute the decrees for eviction for ever, it is only that the execution petitions are closed in view of Ext.P9, order (which has been confirmed by this Court in Ext.P10 judgment). In that situation the appropriate course open to the petitioner is to await the decision of the appellate court O.P.(C). Nos.1509 & 1511 of 2011 -: 9 :- in appeals arising from Exts.P1 and P2, judgments and decrees. After the appeals are disposed of and if the appellate decrees enable petitioner to do so, it is open to the petitioner to file appropriate applications in the executing court to reopen E.P.Nos.434 of 2009 and 435 of 2009 and proceed with the execution in the light of the decrees that the appellate court may pass in the appeals. I said, from the submissions of learned counsel on both sides that the appeals arising from Exts.P1 and P2, judgments and decrees are posted for hearing on 29.8.2011. Learned counsel on both sides expressed willingness to argue the appeals on the said day. In the circumstances, learned Addl. District Judge, Ernakulam is directed to hear the appeals as early as possible, if possible on 29.8.2011 itself in case, it is not otherwise inconvenient to the learned Addl. District Judge to do so on that day and dispose of the appeals as early as possible. Resultantly these original petitions are disposed O.P.(C). Nos.1509 & 1511 of 2011 -: 10 :- of with the following directions :- (1)Submissions made by learned counsel on both sides that they are ready to argue the appeals arising from Exts.P1 and P2, judgments and decrees on 29.8.2011 is recorded. Learned Addl. District Judge, Ernakulam who is hearing the appeals is directed to dispose of said appeals as expeditiously as possible and, if it is not otherwise inconvenient to the learned Addl. District Judge, he shall hear the appeals on 29.8.2011 itself. (2)Subject to the decision in the said appeals, it is open to the petitioner to move appropriate applications in E.P.Nos.434 of 2009 and 435 of 2009 before learned Principal Munsiff, Ernakulam to reopen those execution petitions which are closed as per Ext.P8 order (in both the cases) and request learned Principal Munsiff to proceed with execution in the light of the decrees that the appellate court may pass O.P.(C). Nos.1509 & 1511 of 2011 -: 11 :- in the appeals. (3)Learned Addl. District Judge (in Arbitration O.P.No.242 of 2005) shall handover the keys of the shop rooms to the learned Principal Munsiff subject to the decision which learned Addl. District Judge may take in the appeals as to the entitlement of petitioner to get eviction. THOMAS P. JOSEPH, JUDGE. Jvt