IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA REGULAR FIRST APPEAL NO.2023/2017(POS) BETWEEN:
SRI VELLANKI RAVI, ADVOCATE, S/O LATE SRI.V.PURUSHOTHAM, AGED ABOUT 44 YEARS, RESIDING AT FLAT NO.3, SECOND FLOOR, RAMYA REJOICE APARTMENTS, NO.352, 1ST STAGE, INDIRANAGAR, BINNAMANGLA, BANGALORE-560038.
... APPELLANT (BY SRI Y.R. SADASHIVA REDDY, SENIOR COUNSEL FOR SRI NAGARAJU N., ADVOCATE) AND:
1. SRI WINSTON TAN, S/O LATE SRI.K.T.TAN, AGED ABOUT 70 YEARS, 2. SMT. GULBANO TAN, W/O.SRI.WINSTON TAN, AGED ABOUT 69 YEARS, BOTH ARE RESIDING AT:
G-003, PROMENADE PLACE, #45/2, PROMENADE ROAD, BANGALORE-560042.
3. SMT. SHALINI SALGAR, C/O SRI.MANOHAR SALGAR, AGED ABOUT 72 YEARS, RESIDING AT :#24, 12TH CROSS, FIRST STAGE, INDIRANAGAR, BANGALORE-560038.
... RESPONDENTS (BY SRI GURURAJ JOSHI, ADVOCATE FOR R1 & R2;
VIDE ORDER DATED 13.12.2017 NOTICE ON R3 IS DISPENSED WITH) ****** THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE ORDER DATED: 04.11.2017 PASSED ON IA.NO.2 IN EX.NO.1307/2016 ON THE FILE OF THE XXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE IA.NO.2 FILED BY THE APPELLANT - OBJECTOR UNDER ORDER 21 RULES 97 , 101 AND 103 R/W SECTION 151 OF CPC., TO ADJUDICATE HIS CLAIMS OVER THE EXECUTION PETITION SCHEDULE PROPERTY.
THIS RFA COMING UP FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING.
J U D G M E N T The present Regular First Appeal is filed against the order dated 4.11.2017 on I.A. No.2 made in Execution No.1307/2016 on the file of the XXV Additional City Civil & Sessions Judge, Bangalore city, dismissing the application filed by the appellant - objector under Order 21 Rules 97, 101 & 103 r/w Section 151 of Code of Civil Procedure.
2. The plaintiffs filed O.S. No.5723/2008 for declaration and recovery of possession directing the defendant Nos.3 and 4 to quit and deliver possession of the suit schedule premises to the plaintiffs and to direct the 2nd defendant to remit or pay Rs.40,000/- being the rents collected from the earlier tenant (defendant No.1) from 18.7.2006 to 15.12.2006 and also for directing the 2nd defendant to remit and pay a sum of Rs.1,05,000/- @ Rs.15,000/- per month towards damages and for other reliefs.
3. During the pendency of the proceedings, the plaintiffs and defendant No.2 filed a Memorandum of Settlement under Section 89 of the Code of Civil Procedure r/w Rules 24 and 25 of the Karnataka Civil Procedure (Mediation) Rules, 2005 wherein it is stated that the defendant Nos.1,3 and 4, the earlier tenants have vacated the suit schedule premises and therefore the plaintiffs and defendant No.2 have entered into Memorandum of Settlement and it reads as under:
1. The defendant No.2 admits that her sister Smt. Madhavi Diwakar Nabar had cancelled the will dated 06.02.2001 executed in her favour and later as per the final will dated 28/06/2004, bequeathed the suit property in favour of her brother Lt. Col. Sridhar Salgar. Further, Lt. Col. Sridhar Salgar having become the absolute owner by virtue of the Will dated 28/06/2004, sold the suit property for valuable consideration in favour of the plaintiffs herein.
2. The defendant No.2 also admits that the plaintiffs by virtue of the registered sale deed dated 17/07/2006 executed by Lt. Col. Sridhar Salgar in their favour, have become the absolute owners of the suit property, the khatha having been changed to their name in the BBMP and have been paying tax.
3. That in view of the above factual situation, the defendant No. 2 does not claim any right or interest, of whatsoever nature, against the plaintiffs in the suit property and hereby agree and undertake to deliver vacant possession of the suit schedule property to the plaintiffs, within one month from this day.
4. That the plaintiffs shall pay the sum of Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand Only) to the defendant No.2 at the time the defendant No.2 handover the vacant possession of the suit schedule premises.
5. That in the event of the defendant No.2 failing to handover the vacant possession of the suit schedule premises to the plaintiffs within one month as agreed, the plaintiffs shall be entitled to take vacant possession of the suit schedule premises through the process of court against the defendant No.2 or any body claiming through or under her, by filing execution petition.
6. The plaintiffs shall be entitled for receiving the amounts of rent deposited in the above case.
7. The parties agree that except as above, they have no claims of whatsoever nature against each other.
4. By the Judgment & Decree dated 30.3.2016 made in O.S. No.5723/2008, the trial Court decreed the suit in terms of the Memorandum of Settlement entered into between the parties. The plaintiffs - decree holders filed Execution No.1307/2016 to implement the decree in terms of the settlement entered into between the plaintiffs and the 2nd defendant. During the pendency of the execution proceedings, the appellant who is the Objector filed an application under order 21 Rules 97, 101 & 103 r/w Section 151 of Code of Civil procedure to adjudicate his claims in the Execution Petition schedule property. The same was contested by the decree holders by filing the objections. The trial Court considering the application and the objections, by the impugned order dated 4.11.2017 dismissed the application. Hence the Objector filed the present Regular First Appeal.
5. When the matter was posted for admission on 30.11.2017, Sri Y.R. Sadashiva Reddy, learned senior counsel appearing for the appellant -Objector after arguing the matter for some time, requested for one year time to hand over vacant possession of the suit schedule premises to the landlords. The same was opposed by Sri Gururaj Joshi, learned counsel appearing for Respondent Nos.1 and 2 – plaintiffs and submits that reasonable time may be granted. After considering the material available on record, this Court was of the opinion that it will be reasonable to grant seven months time to the appellant to vacate and hand over vacant possession of the suit schedule premises to the landlords without dragging further. In terms of the order dated 30.11.2017 passed by this Court, the appellant filed affidavit before this Court on 5.12.2017, which reads as under;
“I, Sri.VELLANKI RAVI, Advocate, S/o Late Sri.
V. Purushotham, Aged about 44 years, Residing at Flat No.3, Second Floor, Ramya Rejoice Apartments, No.352, 1st Stage, Indiranagar, Binnamangala, Bangalore-560038., do hereby solemnly affirm and state on oath as follows:-
1. I submit that I have filed the above appeal aggrieved by the orders of the dismissal dated 4.11.2017 passed in Execution Petition No.1307/2016, on the file of the XXV Additional City Civil and Session Judge at Bangalore (CCH- 23), on I.A.No.2, being the Objector Application filed by me under Order XXI Rules 97, 101 and 103 read with Section 151 of CPC.
2. I submit that the above appeal was heard on 30.11.2017 for admission and hearing on I.A. No.1 for stay.
3. I submit that after hearing this Hon’ble court was pleased to direct me to undertake to vacate and handover the vacant possession of the Schedule Premises within 7 months.
4. I submit that I undertake to handover the Vacant Physical Possession of the Schedule Premises to the Landlord within 7 months from this day without creating any manner of 3rd party rights over the Schedule Premises.
IDENTIFIED BY ME -SD- -SD-
ADVOCATE DEPONENT VERIFICATION I, Vellanki Ravi, the deponent above do hereby verify the contents stated above are true and correct BANGALORE -SD-
DATE: 5.11.2017 DEPONENT”
6. In terms of the Memorandum of settlement entered into between the plaintiffs and defendant No.2, O.S. No.5723/2008 was decreed in favour of the plaintiffs and the 2nd defendant has not challenged the same. Therefore the decree granted in favour of the plaintiffs has reached finality. Therefore the plaintiffs - decree holders filed the Execution No.1307/2016. During the pendency of the execution proceedings, the appellant who is the Objector filed an application under order 21 Rules 97, 101 & 103 r/w Section 151 of Code of Civil procedure to adjudicate his claims over the Execution Petition schedule property. The trial Court considering the application and the objections, by the impugned order dated 4.11.2017 dismissed the application. Hence the Objector filed the present Regular First Appeal.
7. In view of the affidavit filed by the appellant - Objector before this Court on 5th December 2017 agreeing to vacate and hand over vacant possession of the suit schedule premises to the plaintiffs - decree holders in O.S. No.5723/2008, the appellant is directed to vacate and hand over vacant possession of the schedule premises to the plaintiffs - decree holders (landlords) within seven months i.e., on or before 5th July 2018 and he shall deposit rent in Execution No.1307/2016 at the rate of Rs.7,500/- (Rupees seven thousand five hundred only) per month. Further, the appellant shall not sub-let the suit schedule premises to any third party.
With the above observations, the Regular First Appeal is disposed of.
Sd/- JUDGE Gss/-