Full Judgment
D.V. Shylendra Kumar, J.
1. This revision petition under Section 46(1) of the Karnataka Rent Act is directed against the order dated 3-1-2002 passed in Miscellaneous Petition No. 157 of 1998 on the file of the II Additional Small Causes Judge, Bangalore. The Trial Court having allowed the miscellaneous petition which had been filed under the provisions of Order 9, Rule 13 of the CPC and having set aside the earlier order of eviction that had been passed in H.R.C. No. 2032 of 1992, dated 6-1-1994, the aggrieved respondent in the miscellaneous case who was the petitioner in the HRC and in whose favour the eviction order had been passed is before this Court.
2. H.R.C. No. 2032 of 1992 had been filed before the Court below praying for an order of eviction as against the respondent in this revision petition on the grounds of bona fide use and occupation of the landlady.
3. The respondent having been set ex parte, the petition came to be allowed on 6-1-1994 and an eviction order had been passed. It appears that this eviction order was put into operation by instituting Execution Case No. 4719 of 1996. The execution case was also closed and the premises in question was taken possession and after dispossessing the occupants therein as on 11-3-1998. It appears, thereafter, the respondent herein also describing as Venkatamma W/o late Venkatappa and her son Krishnappa had filed applications wider-Order 21, Rules 92 to 101 read with Sections 47 and 151 of the CPC before the Executing Court contending that they have been in possession in their own right and that they have been illegally dispossessed and for restoration of their possession. However, by an order dated 7-10-1998, the application that had been filed by these persons were dismissed and in the objections that had been filed by the decree-holder to the effect that the application that had been filed by the two persons under Order 21, Rules 97 to 101 was not maintainable, as they were the respondents in the HRC case and not third parties. The execution petition came to be closed.
4. The Executing Court did not go into the details of the obstruction, being of the view that the so-called obstructers had already filed an application under Order 9, Rule 13 of the CPC to set aside the ex parte order which had been passed in HRC No. 2032 of 1992 and being the judgment-debtor in the execution case, there is no occasion for the Court to either look into their grievance or enquire into the same as these persons can very well pursue their remedy which they have already sought for by filing an application under Order 9, Rule 13 of the CPC. This is the Miscellaneous Case No. 157 of 1998 which had been filed by the obstructers in the execution case which has now come to be allowed by the Court below and against which the aggrieved original petitioner in H.R.C. No. 2032 of 1992 is before this Court.
5. Sri S.V. Shastry, learned Counsel appearing for the petitioner submits that the Court below has committed a grave error in allowing the miscellaneous petition and further ordering restitution of petition schedule premises to the possession of the respondent in the HRC case. The learned Counsel submits that the respondent in the present revision petition is also the respondent in HRC No. 2032 of 1992 having filed an application under the provisions of Order 21, Rule 97 before the Executing Court and having suffered an adverse order in that proceeding their only remedy was to prefer an appeal as is contemplated under Order 21, Rule 103 of the CPC and as such, could not have maintained an application under Order 9, Rule 13 of the CPC. The learned Counsel also submits that the Court below has committed an illegality in entertaining the very application under Order 9, Rule 13 and the illegality is compounded by the Court passing a compendious order for restitution of the schedule premises to the possession of the respondent. The learned Counsel has placed reliance on the decision of the Hon'ble Supreme Court in N.S.S. Narayana Sarma v. Goldstone Exports (Private) Limited and Ors., : AIR 2002 SC251 in support of his submission that the respondent having suffered an adverse order on an application under Order 21, Rule 97 the only remedy was to file an appeal and application before the Executing Court or in any other proceeding are not maintainable.
6. The learned Counsel for the respondent on the other hand, submits that the application filed in Execution Case No. 4719 of 1996 was not at all enquired into by the Executing Court inasmuch as the Executing Court found that it was for the party to prosecute her application under Order 9, Rule 13 which had already been filed before the Court and in that view of the matter, there was no occasion to entertain an application and as such, the application was summarily dismissed. The learned Counsel also submits that the respondent while making an application for setting aside the ex parte order invoking the provisions of Order 9, Rule 13 had filed an application under Section 144 of the CPC for restitutions of the premises to her possession and it is on such application, the Court having allowed the miscellaneous petition and having set aside the ex parte order of eviction also directed restitution of the possession of the property to the respondent. The learned Counsel submits that the decision relied upon by the learned Counsel for the petitioner is not applicable to the facts of the present case.
7. An application filed under Order 21, Rule 97, 98 or 99 of the CPC is required to be considered in accordance with the provisions of Order 21, Rule 301 and the scope of such an application is quite vide and is to be treated as though it is a title suit between the parties and it is in this view of the matter that any other proceeding in respect of the same subject-matter is barred under this provision. However, under Rule 103 it is also made clear if there are any pending litigation between the parties even prior to the filing of the applications under Order 21, Rule 97 the outcome of the order that may be passed in such application is subject to the outcome of the pending litigation between the parties. In the instant case, the Executing Court which had an occasion to examine the application under Order 21, Rules 97 to 101 filed by the obstructor thought it not necessary to go into the merits of the application particularly, in the light of the pending miscellaneous petition which had been filed under Order 9, Rule 13. That means, the Executing Court did not adjudicate the application. The legal position is, even if such an application is to be adjudicated and an order passed on such an application it is nevertheless subject to the outcome of the other prior pending litigation between the parties as contemplated under Rule 102.
8. While the application under Order 21, Rule 97 was not adjudicated on merits and on the other hand was rejected, in view of the prior pending proceeding in the form of Miscellaneous Petition No. 157 of 1998, it cannot be said that there was an order on merits. Under the said application under Order 21, Rule 97 if at all it was adverse on merits to the party, it should have been got over by filing an appeal. Even otherwise, it is the outcome of the pending prior litigation that prevails. In either view, Miscellaneous Case No. 157 of 1998 being pending even when the Executing Court considered the application, the outcome of Miscellaneous Case No. 157 of 1998 always prevails. Suffice it to say, in the instant case, the application under Order 21, Rule 97 was not even adjudicated on merits. In this view of the matter, I am of the opinion that the decision relied upon by the learned Counsel appearing for the petitioner in the case of N.S.S. Narayana Sarma, supra, is not attracted to the facts of the present case.
9. So far as the second submission that the composite order allowing the miscellaneous case as well as directing the respondent in miscellaneous case to restitute possession of the premises which the respondent had obtained by execution is not tenable, I am of the view, that there is no legal infirmity in passing an order of this nature particularly, when the order has been passed in the light of the application which had been made by the petitioner in Miscellaneous Case No. 157 of 1998 under the provisions of Section 144 of the CPC.
10. A person who gets into possession under fortuitous circumstances such as the present one wherein an ex parte order for eviction of occupation is obtained in an HRC proceedings even without proper service of notice of the petitioner in the case on the respondent and throws out the occupants before they realise what has happened cannot be heard to complaint of hardship or injury when the possession is restored to such prior occupants by the operation of due process of law. There is no merit in the contention urged by the learned Counsel for the petitioner.
11. In the circumstances, I do not find any error or illegality in the order of the Court below in passing the impugned order. Accordingly, this revision petition is dismissed.