IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 RP.No. 296 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN CRP.123/2004 Dated 05/02/2008 REVIEW PETITIONERS/RESPONDENTS/JDGT.DEBTOR 2/D2: 1. CHINNAMMA, D/O. KARTHIYAYANI, MOOLAYIL, JANATHAVILASAM, PUTHENVEETTIL, RAMAMANGALAM KARA, MUVATTUPUZHA TALUK. 2. C.K.BHAGAVAL DAS, NANATHA NIVAS, KAVUMPADY, MUVATTUPUZHA,ERNAKULAM DISTRICT. 3. C.K. DEVADAS, XLI/85, OLD RAILWAY STATION ROAD, ERNAKULAM DISTRICT, KOCHI-682 018. 4. C.K. SATHYAN, CHALACKAL HOUSE, GOKUL, KADATHY P.O., MUVATTAUPUZHA, ERNAKULAM DISTRICT. 5. C.K. REGHU, CHALAKKAL HOUSE, XI/46, JANATHA NIVAS, KACHERITHAZHAM, MUVATTUPUZHA, ERNAKULAM DISTRICT. 6. ANITHA, W/O. LATE C.K.MOHAN DAS,PRANAVAM (JANATHA), PRAKASH RAOD, KADATHI, MUVATTUPUZHA. 7. NIVEDITHA (MINOR), REP. BY NEXT FRIEND ANITHA, MOTHER, PRANAVAM (JANATHA), PRAKASH ROAD, KADATHI, MUVATTUPUZHA. BY ADV. SRI.A.C.THOMAS ADHIKARAM RESPONDENTS: REVN.PETNRS./DECREE HLDR./PLTNFS/JDGT.DEBTOR 3&4/D -------------------------------------------------------------------------------------- 1. LEELA VARGHESE, W/O. VARGHESE, VADAKKUMCHERY HOUSE, SREEMOOLANAGARAM KARA, CHOWARA VILLAGE, ALUVA TALUK. 2. MARY JOSE @ SUGUNA, W/O. THOMAS, MAKKATTUKULAM HOUSE, MUNDOOR KARA, ANJOOR VILLAGE, TRICHUR TALUK. 3. ALPHONSA, W/O. VARKEY, ELANJICKAL HOUSE, ELANJICKAL HOUSE, ANCHERY KARA, NADATHARA VILLAGE, THRISSUR DISTRICT. 4. C.K.KUMARAN, S/O CHALAKKARA KUTTAN, KADATHI KARA, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA. BY ADV.SRI.R1 TO R3 SRI.DINESH R.SHENOY THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 14/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. ============================= REVIEW PETITION NO. 296 OF 2008 in CRP 123/2004 =============================== Dated this the 14th day of March 2008 ORDER The respondents in CRP 123/2004 are the review petitioners herein. The review petitioners sought to review the final order dated 5.2.2008 in CRP 123/2004. By the impugned order passed in the revision, this Court set aside the order passed by the Execution Court holding that the decree for recovery of possession of the plaint schedule properties passed in the original suit is without jurisdiction, null and void. 2. This Court, by considering the contentions raised by the parties in detail, passed the impugned order. According to the review petitioners/judgment debtors, the order passed in the Civil Revision Petition is vitiated by errors apparent on the face of the record. It is contended that they are the tenants of the building and therefore they are entitled to the protection under the Rent Control Act and that they can be evicted only in accordance with the provisions of section 11 of the Rent Control Act. The review petitioners have submitted that the only question considered by R.P.296/2008 2 the civil court in the suit is as to whether the judgment debtors have any right over the land as per Section 106 of the Kerala Land Reforms Act and that the Civil Court did not go into the question of applicability of the Rent Control Act. It is further contended that the finding of this Court in the impugned order that the benefits under the Rent Control Act should have been raised in the suit is not the correct position of law and therefore the impugned order shall be reviewed. The counsel also cited the decision reported in Sarwan Kumar and another v Madan Lal Aggarwal (AIR 2003 SC 1475) and the decision reported in B.V.Patankar and others v C.G.Sastry (AIR 1961 SC 272) wherein it is held that any suit instituted by the landlord for eviction of a tenant from a building falling within the ambit of Rent Control Act otherwise than as in accordance with the Rent Control Act is incompetent for lack of jurisdiction and any decree of the court in such a suit is null and void and have no effect. The facts of the cases cited by the learned counsel and the settled position of law in the above cited case have no application at all in this case. 3. In the impugned order, this Court noticed the fact that R.P.296/2008 3 the preliminary decree passed by this Court in A.S.No.372/1998 was confirmed by the Supreme Court. The clear finding entered after deciding the dispute between the parties in A.S.372/1998 is that a debtor-creditor relationship is exists between the parties. I have also noticed in the impugned order the finding entered by this Court in CRP 1247/1998 disallowing the judgment debtors to amend the written statement in the final decree proceedings to include the plea that they are the tenants of the building and therefore they are entitled to protection under the Kerala Building Lease and Rent Control Act. I have also noticed the fact that after the order has become final in CRP 1247/1998, another attempt was made by the respondents/judgment debtors to file an additional objection claiming rights under the Rent control Act which was negatived by the trial court in the order passed in I.A.650/1998. The said order was challenged in CRP 1717/1999 also ended in dismissal. In the above circumstances, by the impugned order, I find that the learned sub judge's finding that the 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 R.P.296/2008 4 jurisdiction and hence null and void, is wrong and illegal. I also find that the execution court had exceeded in jurisdiction in making an enquiry as to whether Ext.R1 Udampadi amounts to a lease transaction ignoring the finding of this Court in A.S.372/1998 that it is not a lease but a mortgage. In the above facts and circumstances, I am of the view that the impugned order passed in CRP 123/2004 is not liable to be reviewed for the reason stated in the review petition. There is no error apparent on the face of the record to review the order under challenge. 4. In the result, the review petition fails and it is dismissed. 5. Learned counsel for the review petitioner requested this court to grant two months time for vacating the premises. 30 days' time is granted for vacating the premises on condition that the review petitioners pay Rs.5,000/- as cost to the respondents within a period of one week from today. HARUN-UL-RASHID, JUDGE css/