KHASIM HUSSAIN Vs. GADIGI PRATAP

JUDGEMENT

(1.) THE Petitioner in this revision petition was the judgment debtor in Execution Proceedings No. 155 of 2000 on the file of the Court of II Additional Civil Judge, Junior Division, Bellary, against whom an eviction order had been executed through the Court and who had made an application under Section 151 Code of Civil Procedure to redeliver the premises on the ground that the eviction order had been obtained behind his back and by playing fraud on Court and who had failed in his attempt to get relief in the application.

(2.) SRI Datar, learned Counsel for the Petitioner, submits that the eviction order itself has been passed by the Court exparte and this happened due to the fact that the Petitioner in the eviction petition who was a landlord had deliberately given a wrong address of the Respondent in that petition and in view of such incorrect address, the revision Petitioner never came to know of the proceedings and therefore, the Court had proceeded to pass an exparte order of eviction. The learned Counsel submits that the Respondent herein has deliberately played fraud on the Court as well as on the party for obtaining an exparte order of eviction and such an order is a nullity and even if the said order is executed against him, it is of no consequences in law. Further, learned Counsel submits that even as on date some belongings of the Petitioner are still in the schedule premises and as such, it may be technically said that the execution proceedings has not come to an end and in such circumstances, the Petitioner could maintain an application to redeliver the petition schedule premises in his favour in view of the fraudulent order obtained by the decree -holder (Respondent herein) from the Court. The learned Counsel has also placed reliance on a reported decision of the Andhra Pradesh High Court reported in Koneru Aruna Kumari Vs. Shaik Ali, AIR 1991 AP 191 in which case a relief of the nature sought for in the Interim Application filed before the Executing Court in the present case had been sought for before the executing Court in that case. The learned Single Judge of the Andhra Pradesh High Court had granted such a relief being of the view that the order in question had been obtained against a wrong person as the person against whom the eviction order had been passed is not the person in possession of that property and under such circumstances, the Executing Court could restore the possession in favour of the person who had been wrongly dispossessed. The Andhra Pradesh High Court placed reliance on the decision of the Apex Court in the case of Busching Schmitz Private Limited Vs. P.T. Menghani and Another, AIR 1977 SC 1569 for such purpose.

(3.) THE duty of the Executing Court is to execute an eviction order or decree in accordance with that order and nothing beyond. The question of Executing Court sitting in judgment in one way or other over a decree or order sought to be enforced does not arise. If the Petitioner is really aggrieved by the eviction order, it is for him to seek appropriate remedy before a competent Court and it is that Court which can pass an incidental order or relief to the Petitioner and not the Executing Court.