Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN MONDAY, THE28H DAY OF OCTOBER20136TH KARTHIKA, 1935 OP(C).No. 3641 of 2013 (O) -------------------------------------- [EP.NO.69/2013 IN O.S. NO.516/1991 OF THE II ADDITIONAL - SUB COURT,ERNAKULAM] .......... PETITIONERS: --------------------- 1. MANGALA RAO, W/O. LATE RAMACHANDRAN EMBRANTHIRI, KOLLASSERI MADOM, RAVIPURAM ROAD, ERNAKULAM-682 016.
2. K.R.GANESH, S/O. LATE RAMACHANDRAN EMBRANTHIRI, KOLLASSERI MADOM, RAVIPURAM ROAD, ERNAKULAM, KOCHI-682 016.
3. K.R.MAMATHA , D/O. LATE RAMACHANDRAN EMBRANTHIRI, KOLLASSERI MADOM, RAVIPURAM ROAD, ERNAKULAM, KOCHI-682 016. BY ADVS.SRI.ELVIN PETER P.J, SRI.T.G.SUNIL. RESPONDENTS: ------------------------ 1. G.RAJAM, W/O. LATE A.SREENIVASAN, MANIKANDA NIVAS, K.S.N MENON ROAD, RAVIPURAM, KOCHI-682 016.
2. S.SIVA KUMAR, S/O. A.SREENIVASAN, MANIKANDA NIVAS, K.S.N MENON ROAD, RAVIPURAM, KOCHI-682 016.
3. S.KRISHNA KUMAR, S/O. A.SREENIVASAN, MANIKANDA NIVAS, K.S.N MENON ROAD, RAVIPURAM, KOCHI-682 016. R3 SRI. P. SANTHALINGAM, SENIOR ADVOCATE, ADV. SRI.S.SHARAN. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON2810-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Prv. W.P.(C).NO.3641/2013-O: APPENDIX PETITIONERS' EXHIBITS: P1 : COPY OF THE JUDGMENT
DTD.23.11.1992 IN OS .516/1991 IN THE FILE OF SUB COURT, ERNAKULAM. P1(A): COPY OF THE DECREE DTD.23.11.1992 IN OS NO.516/1991 IN THE FILE OF SUB COURT, ERNAKULAM. P2 : COPY OF THE JUDGMENT
DTD.7.9.2012 IN A.S. 528/1993 OF THIS HON'BLE COURT. P3 : COPY OF THE EXECUTION PETITION EP NO.69/2013 IN OS NO.516/91 FILED BY THE PETITIONERS BEFORE THE ADDL. SUB COURT-II, ERNAKULAM. P4 : COPY OF THE STATEMENT OF OBJECTION FILED BY THE JUDGMENT
DEBTORS BEFORE THE SUB COURT, ERNAKULAM. P5 : COPY OF THE AFFIDAVIT DTD.29.8.2013 FILED BY THE3D JUDGMENT
DEBTOR IN EP NO.69/2013 BEFORE THE SUB COURT, ERNAKULAM. P6 : COPY OF THE AFFIDAVIT DTD.30.8.2013 FILED BY THE2D DECREE HOLDER BEFORE THE SUB COURT, ERNAKULAM. P7 : COPY OF THE ORDER
DTD.30.9.2013 IN EP NO.69/2013 OF THE SUB COURT, ERNAKULAM. P8 : COPY OF THE AFFIDAVIT FILED BY THE3D JUDGMENT
DEBTOR BEFORE THE SUB COURT, ERNAKULAM ON1010.2013. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.N.RAVINDRAN, J.
------------------------------- O.P.(C).No.3641 of 2013 --------------------------------- Dated this the 28th day of October, 2013 JUDGMENT
The petitioners herein are the decree holders in O.S.No.516 of 1991 on the file of the Court of the Second Additional Subordinate Judge of Ernakulam. The suit was instituted by the predecessor-in-interest of the petitioners was one for recovery of possession of the plaint schedule property on the strength of title , with damages for use and occupation. The predecessor-in-interest of the respondents who was the sole defendant in the suit, resisted the suit by filing a written statement wherein he inter alia claimed fixity of tenure under section 106 of the Kerala Land Reforms Act, 1963. After trial the suit was decreed by Ext.P1 judgment delivered on 23.11.1992. The operative portion of Ext.P1 judgment reads as follows: "In the result, the suit is decreed with costs. The plaintiff is given a decree to recover the plaint schedule property from the possession of the defendant on the strength of title after removing all the structures belonging to the defendant from the property. DW-1, the defendant is directed to surrender the plaint schedule property to the possession of the plaintiff within 3 months from today after removing all the structures constructed by him in the property. If the defendant fails to comply with the above direction, the plaintiff will be entitled to get recovery of the plaint schedule property after removing all the structures put up by the defendant through O.P.(C) 3641 of 2013 2 court in which case, the plaintiff will be entitled to his costs of removal of the structures. The plaintiff is entitled to realise a sum of Rs.900/- per mensem towards damages for use and occupation of the plaint schedule property from the date of suit till he gets actual possession of the same".
2. Aggrieved thereby, the defendant filed A.S.No.528 of 1993 in this Court. While that appeal was pending, the defendant passed away and thereupon, the respondents herein were impleaded as additional appellants 2 to 4 in the appeal. Later, the plaintiff also passed away thereupon, the petitioners herein were impleaded as additional respondents 2 to 4 in the appeal. A.S.No.528 of 1993 was pending in this Court for nearly 19 years until the appeal was heard and dismissed by Ext.P2 judgment delivered on 7.9.2012. This Court held that the transaction between the parties is only a license arrangement and not a lease, that the defendants are not entitled to the protection of section 106 of the Kerala Land Reforms Act and that on the terms of the license arrangement the defendants are not entitled to value of improvements. This Court accordingly upheld the findings of the trial Court and dismissed the appeal. The operative portion of Ext.P2 judgment reads as follows: "For the aforesaid reasons, we do not find any merit in this appeal. The same fails and it is accordingly dismissed. The parties are directed to bear their respective costs". O.P.(C) 3641 of 2013 3 3. The judgment debtors did not surrender possession of the plaint schedule property after removing the structures put up by them within the time limit of three months computed from the date of the appellate decree namely three months from 7.9.2012. As a result thereof on 11.3.2013, the decree holders filed E.P.No.69 of 2013 in the Court of the Second Additional Subordinate Judge of Ernakulam wherein they prayed for delivery of the plaint schedule property after removing the structures therein. Upon receipt of notice in the execution petition, the judgment debtors entered appearance and filed Ext.P4 objections dated 26.7.2013 wherein they contended that to remove the structures they would have to locate another suitable space to accommodate the said structures and therefore, a period of 12 months may be granted. They also filed Ext.P5 affidavit sworn to by the third respondent on 29.8.2013, wherein a similar request was made. In paragraph 3 of the said affidavit, the third respondent herein had averred as follows: "It is respectfully submitted that to give vacant possession of the petition schedule property would require us to remove the above said structures, as these structures are removable. It is a time consuming process. This is particularly so because many of the equipments and installation are to be removed in such a way O.P.(C) 3641 of 2013 4 that they are not damaged so that they could be fixed elsewhere, in the same condition. Many structures are sophisticated automobile serving Units. Besides, we have also to locate another suitable space to accommodate and fix the said structures. A re-location of the workshop is highly essential. This is more so in the context that several lakhs have been invested in the business and more than 10% are permanently employed in the unit and the said persons are to be accommodated. All these require at least 10 to 12 months. In such circumstances, it is submitted that this Hon'ble Court may be pleased to grant us a period of 10 to 12 months time for vacating the petition schedule property and hand over vacant possession of the same to the decree holders, otherwise, it would amount to serious injuries and hardship to us." 4. The second petitioner herein, on his own behalf and on behalf of the other decree holders filed Ext.P6 objections dated 30.8.2013 wherein in paragraphs 3 to 5, he averred as follows.
3. It is respectfully submitted that the Execution Court cannot go behind the decree. The decree of this Court as confirmed in appeal by the Hon'ble High Court peremptorily allowed ejectment and no time has been granted to effect the ejectment. It is respectfully pointed out that the appeal was dismissed on 7-9-2012 by the decree under execution. Now already one year has elapsed and the judgment debtors had sufficient time to comply with the decree and to vacate the premises. It may also be pointed out that the Execution Petition was filed on 11-3-2013 and the notice of execution O.P.(C) 3641 of 2013 5 petition was served on the JDs on 22-3-2013. The JDs entered appearance on 3-6-2013. Six months have elapsed even after receipt of the execution petition by the judgment debtors.
4. It is admitted in the affidavit dated 29-8-2013 (See Para 3 beginning) that all the structures erected by the JDs in the plaint schedule property are removable. Nothing prevented the JDs to remove the structures, to vacate the premises and thus comply with the decree except their willful refusal. It is therefore humbly submitted that the Judgment Debtors are not entitled to any further indulgence by way of time.
5. All the averments and contentions in the Objection dated 26-7-2013 and in the affidavit dated 29-8- 2013 filed by the JD are baseless and untenable, being only a repetition of the contentions urged in the written statement and concurrently rejected by this Court as well as the Hon'ble High Court. Reference may please be made to the judgment dated 7-9-2013 of the Division Bench affirming the judgment dated 23-11-1992 of this Hon'ble Court.
5. The execution court considered the rival contentions and passed Ext.P7 order dated 30.9.2013 in E.P.No.69 of 2013 whereby the execution court directed as follows: In the result the following order is passed:- (i) The judgment debtors shall file affidavit within 15 days from today undertaking to surrender vacant possession of the decree schedule property peacefully to the decree holders on or O.P.(C) 3641 of 2013 6 before 25/03/2014 and to continue to pay charges for use and occupation at the rate specified above till they vacate the premises. (ii) If any of the condition is violated, the judgment debtors will not be entitled to get the benefit of time granted as above. For compliance and report to 5/10/2013.
6. Shortly thereafter, the third judgment debtor filed Ext.P8 affidavit on 4.10.2013 undertaking to vacate the decree schedule property on or before 25.3.2014 and to remove the structures which the defendants have erected in the plaint schedule property at their own cost and expenses and deliver vacant possession to the decree holders. In this original petition filed on 22.10.2013, the decree holders challenge Ext.P7 order passed by the execution court granting the judgment debtors time till 25.3.2014 to surrender possession of the decree schedule property and to remove the structures therein. The principal contention raised in this original petition is that the execution court has travelled beyond the terms of the decree and that it erred in not directing delivery of the decree schedule property, but in granting time to the judgment debtors to surrender possession of the decree schedule property.
7. I heard Sri. Elvin Peter, learned counsel appearing for the O.P.(C) 3641 of 2013 7 petitioners and Sri. P. Santhalingam, learned Senior Advocate counsel appearing for the respondents. Sri. Elvin Peter, learned counsel appearing for the petitioners contended that the trial court had by Ext. P1 judgment and Ext.P2 decree granted the defendant only three months time to surrender possession of the plaint schedule property after removing all the structures put up by him and in the event of the failure on the part of the defendant to remove the structures and to surrender vacant possession within the said period, the plaintiffs are entitled to get recovery possession of the plaint schedule property, after removing all the structures put up by the defendant at the defendant's expense and to realize from the defendant, the sum of Rs.900/- per mensem towards damages for use and occupation of the plaint schedule property from the date of suit till recovery possession. The learned counsel contended that in Ext.P2 judgment which was passed on 7.9.2012 and has attained finality, this Court did not grant further time to the respondents and therefore, on the expiry of the period of three months from 7.9.2012, the petitioners became entitled to obtain vacant possession of the decree schedule property and that the execution court has in granting six months time to the judgment debtors to surrender possession of the decree schedule property, O.P.(C) 3641 of 2013 8 travelled beyond the decree. The learned counsel submitted that the execution court has violated the well settled legal proposition that it cannot go behind the decree and that it was not open to the execution court to alter the terms of the decree by granting the judgment debtors time till 25.3.2014 to surrender possession of the decree schedule property.
8. Per contra, Sri. P.Santhalingam, learned Senior Advocate appearing for the respondents contended that the right of the decree holders, in the event of failure on the part of the judgment debtors to surrender possession of the decree schedule property is only to execute the decree for possession and that the execution court was well within its rights to grant time to the judgment debtors to vacate the decree schedule property, taking note of the fact that the judgment debtors were running a workshop in the decree schedule property, that by the impugned order, the judgment debtors have been granted time only till 25.3.2014 to surrender vacant possession of the premises and therefore, no interference is called for.
9. I have considered the submissions made at the Bar by learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. O.S.No.516 of 1991 was O.P.(C) 3641 of 2013 9 decreed on 23.11.1992. Nearly 21 years have passed thereafter. The appeal filed from decree therein was pending in this Court for nearly 19 years till the appeal was dismissed by Ext.P2 judgment delivered on 7.9.2012. The appellants/the legal heirs of the defendant have not challenged the decree and judgment of this Court and it has attained finality. This Court did not in Ext.P2 judgment grant the appellants time to surrender possession of the plaint schedule property. As a result thereof, the decree became executable forthwith. Even assuming that the judgment debtors were entitled to three months time as granted by the trial court, that period had expired by the time E.P.No.69 of 2013 was filed wherein the decree holders prayed for delivery of possession of the property after removing the structures. The only objection raised by the judgment debtors in E.P.No.69 of 2013 in Ext.P4 objections which was filed on 26.7.2013 is that they have invested more than Rs.23 lakhs in the plaint schedule property to put up the structures and that to remove the structures they would require at least 10 to 12 months. The same was the stand taken in Ext.P5 affidavit dated 29.8.2013. The petitioners/decree holders opposed the said request contending that nothing prevented the judgment debtors from removing the structures, after this Court O.P.(C) 3641 of 2013 10 dismissed the appeal by Ext.P2 judgment delivered on 7.9.2012, that the execution petition was filed on 11.3.2013 and notice of the execution petition was served on the judgment debtors on 22.3.2013 and even thereafter, they have not taken steps to remove the structures and to vacate the premises and therefore, their conduct disentitles them to any further indulgence.
10. From a reading of Ext.P6 objections filed by the decree holders, it is evident that the decree holders had not consented to the grant of time. The execution court has in paragraph 8 of the impugned order observed that interests of justice demand grant of 6 months time to the judgment debtors to remove the movables from the premises. The execution court has by that process re-written the decree and the judgment of the trial court which has merged with the decree and the judgment of this Court and travelled beyond the terms of the decree. As the trial court had granted the defendants only three months time from the date of the decree to surrender possession of the decree schedule property and this Court did not while dismissing the appeal, grant further time and as the execution petition was filed after the said period of three months, computed from the date of Ext.P2 judgment expired, the execution court could O.P.(C) 3641 of 2013 11 not have altered the terms of the decree and granted the judgment debtors further time to surrender possession of the decree schedule property and that too, in the absence of consent from the side of the judgment debtors. As stated earlier, Ext.P2 judgment was delivered on 7.9.2012 and E.P.No.69 of 2013 was filed on 11.3.2013. Under Ext.P1 decree which was upheld by this Court by Ext.P2 judgment, the defendants were bound to remove the structures within three months from 7.9.2012. E.P.No.69 of 2013 was filed only long thereafter on 11.3.2013 and notice of E.P.No.69 of 2013 served on the judgment debtors on 23.3.2013. They should have at least thereafter taken steps to remove the structures and find out alternate accommodation. In Ext.P4 objection and in Ext.P5 affidavit, the judgment debtors have not given any acceptable reason as to why they did not remove the structures after Ext.P2 judgment was delivered on 7.9.2012. In such circumstances, the request for 12 months time to surrender vacant possession of the decree schedule property was untenable and should have in my opinion, in the absence of consent from the decree holders, been summarily rejected. I accordingly allow the original petition, set aside Ext.P7 order dated 30.9.2013 passed by the Court of the Second Additional O.P.(C) 3641 of 2013 12 Subordinate Judge of Ernakulam on E.P.No.69 of 2013 in O.S.No.516 of 1991 and direct the execution court to pass orders on E.P.No.69 of 2013 directing delivery of the decree schedule property, expeditiously and in any event within an outer limit of two weeks from today. Registry to issue certified copies of this judgment to the learned counsel appearing on both sides, if applied for, today itself. Sd/- P. N. RAVINDRAN, JUDGE. Scl.