IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF AUGUST 2019 BEFORE THE HON' BLE MR. JUSTICE S.G. PANDIT CRP No.186/2019 BETWEEN:
SRI M.P.ANAND S/O LATE M.PRABHAKAR AGED 49 YEARS, R/AT NO.3261/2, 1ST CROSS, OMER KHAYAM ROAD, THILAKNAGAR, MYSORE-570021 ... PETITIONER [BY SRI G.BALAKRISHNA SHASTRY, ADV.] AND:
SRI RAGHOTHAM K.S., AGED 46 YEARS, S/O DR.R.P.SARVOTHAM R/AT 97/D, KALIDASA ROAD, JAYALAKSHMIPURAM MYSORE-570002. ... RESPONDENT [BY SRI V.SRINIVASA RAGHAVAN, SENIOR COUNSEL FOR SRI TEJAS C. SHETTY & SRI P.CHINNAPPA, ADVS.] THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE ORDER DATED 02.02.2019 PASSED ON IA NO.1 IN EX.CASE NO.362/2015 II ADDL. SENIOR CIVIL JUDGE AND CJM, MYSURE DISMISSING THE IA NO.1 FILED UNDER SECTION 151 OF CPC. THE EXECUTION PETITION AS IT IS UNEXECUTABLE.
THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner / judgment debtor is before this Court under Section 115 of the Code of Civil Procedure (for short ‘the CPC’), assailing the order dated 02.02.2019 passed on I.A.No.1 in Execution Case No.362/2015 on the file of the II Additional Senior Civil Judge and CJM, Mysuru.
2. The petitioner/judgment debtor herein filed I.A.No.1 under Section 151 of CPC to dismiss the execution petition contending that putting up an auto LPG/CNG dispensation station without complying with the safety standards and explosive standards would be opposed to public policy and that the decree is unexecutable as per the provisions of Section 23 of the Indian Contract Act, 1872. The said application was opposed by the decree holder by filing objection contending that the agreement dated 18.11.2005 was the subject matter of O.S.No.1495/2007 wherein the decree for possession was granted, against which the judgment debtor filed R.A.No.347/2017, which came to be dismissed. Against which, the judgment debtor preferred R.S.A.No.526/2015, which also came to be dismissed confirming the judgment and decree passed in O.S.NO.1495/2007. Considering all these, the Executing Court under impugned order rejected the application.
3. Heard the learned counsel for the petitioner and learned Senior counsel for the respondent. Perused the petition papers.
4. The learned counsel for the petitioner submits that the decree passed in O.S.No.1495/2007 is not executable decree and is opposed to Section 23 of the Indian Contract Act, 1872. The agreement dated 18.11.2005, which is the subject matter of the suit is void and the objects of the agreement are opposed to public policy. It is submitted that establishment of auto LPG dispensation station without complying with the mandatory requirement and required safety measures would be dangerous and opposed to public safety. The decree holder would require additional land to establish the safety measures as required by the Department of Explosives.
5. Per contra, learned Senior counsel for the decree holder-respondent herein submits that the application is filed only with an object to drag on the proceedings and there is no bona fide in the application. Further he submits that the contention raised in the application was considered in the suit as well as in the appeal filed by the judgment debtor. The judgment and decree passed in O.S.No.1495/2007 is confirmed in RA No.347/2012 as well as in RSA No.526/2015.
6. On hearing the learned counsels and on perusal of the petition papers, the only question which arises for consideration is “Whether the Executing Court is justified in rejecting the I.A. filed under Section 151 to dismiss the Execution Petition?”
Answer to the above question is in the affirmative. The respondent – decree holder filed O.S.No.1495/2007 for relief of declaration that he is the lawful tenant under the defendant as per the agreement dated 18.11.2005 in respect of suit schedule property. The defendant was directed to hand over possession of a portion of the suit schedule property, which is in possession of the plaintiff by receiving security deposit of Rs.5,00,000/-. The said judgment and decree was taken up in R.A.No.347/2012 and by judgment dated 26.09.2014, the appeal was dismissed confirming the judgment and decree passed in O.S.NO.1495/2007. The defendant filed RSA No.526/2015 before this Court, which was dismissed by judgment dated 10.07.2018 confirming the judgment and decree. The lease agreement dated 18.11.2005 was the subject matter of the suit and subsequent appeals. Now it is not open for the petitioner / judgment debtor to say that the said agreement is opposed to Section 23 of the Indian Contract Act, 1872. The lease deed dated 18.11.2005 is for the purpose of establishing LPG dispensation station. The contention taken now in the application was considered by the trial Court in the judgment and decree dated 16.06.2012 in O.S.No.1495/2007, in which there is specific finding that lease deed is in accordance with law, which finding has become final and binding on the parties. Paragraph 25 of the judgment in O.S.No.1495/2007 reads as follows :-
“25. Similarly counsel for the plaintiff has relied Section 25 of Indian Contract Act 1872 and contended that, as per Section 25(2) of Indian Contract Act the lease deed between plaintiff and defendant at Ex.P.1 is valid one. To disprove the contents of Ex.P.1 there is no material placed on record. On the other hand it is proved that, plaintiff has entered into Ex.P.1 with a bona fide intention to run Auto LPG/CNG dispensing station and he has taken the suit schedule property on lease. The material evidence on record also disclose the fact that, concerned authority, police officials, explosive department, have visited the spot and issued no objection certificate to the plaintiff. Therefore it can be safely concluded that, plaintiff has entered into Ex.P.1 with the defendant with a sole intention to run Auto LPG / CNG dispensing station ”
7. Further the judgment and decree notes that the decree holder had obtained necessary ‘No Objection Certificates’ from the authorities. It is not open for the petitioner at this stage after suffering the decree to raise the contention that the decree is opposed to Section 23 of the Indian Contract Act, 1872. The learned counsel for the petitioner relied on the decision reported AIR 1983 Kerala 1 K. ABDUL KHADER VS. THE PLANTATION CORPORATION OF KERALA LTD., KOTTAYAM, to contend that if the agreement is void under Section 23 of the Act, the same cannot be enforced in law. The said decision would not assist the petitioner, since in the present case the agreement was the subject matter of the suit and the finding in the suit is that the agreement is in accordance with law, which is affirmed by this Court. It is not open for the judgment debtor to again and again raise the same question, which is already concluded. No material or jurisdictional error is pointed out to interfere with the impugned order. Accordingly, the revision petition is dismissed.
Sd/- JUDGE NG* CT:bms