- (1.)The first respondent-decree-holder obtained an order of eviction on 23-2-1960 against the second respondent-judgment-debtor in HRC.No.754 of 1960 on the file of the First Munsiff, Bangalore. This was confirmed in HRC. Appeal No.69 of 1962 on the file of the District Judge, Bangalore on 24-11-1966. The revision petition filed against this by the second respondent was dismissed on 29-5-1967. An application for leave to appeal to the Supreme Court filed by the second respondent was also dismissed.
(2.)The first petitioner is the father of the judgment-debtor and the second petitioner is the brother of the judgment-debtor. They have entered into a partnership under the partnership deed, marked Ext.D-1 dated 5-8-1955. The object of the partnership was to make suitable arrangements to establish the judgment-debtor and the second petitioner, who are the sons of the first petitioner, in business of exhibiting films and running a cinema at Narasimharaja Road, Bagalore City, under the name and style of 'Naaz Cinema'. The petitioners filed OS. No. 153 of 1967 on 31-8-1967 for a declaration that the order of eviction made in HRC. No.754 of 1960 was not binding on them, and, for a permanent injunction restraining the first respondent from enforcing the order of eviction. The petitioners also obtained an order of temporary injunction on the same day; this injunction order was vacated on 5-10-1967. The petitioners filed MA. No.25 of 1967 on the file of the District Judge, Bangalore, against the order vacating the injunction order, and this was dismissed on 21-11-1967. The civil revision petition filed against this order by the petitioners was withdrawn. After the disposal of the civil revision petition and the application for leave to appeal to the Supreme Court, the first respondent-decree- holder sued out execution of the order of eviction. After the disposal of the miscellaneous appeal, the trial Court made an order on 8-12-1967 directing delivery of possession by 13-2-1968. The delivery warrant was issued on 12-12-1967. When the Amin went to effect delivery of possession, there was obstruction for delivery of possession. A report to this effect was made by the Amin on 18-12-1967 stating that the first petitioner produced the partnership deed before him and refused to vacate the premises and the warrant contains an endorsement of the decree-holder that the Court should direct delivery of possession with the assistance of the police. A mahazar regarding the obstruction was also submitted to the Court by the Amin. Thereafter, the decree-holder made an application on 18-12-1967, which is marked as IA. IV, praying that the Court may order delivery of possession with the help of the police and by breaking open the locks of the premises. An order was passed accordingly by the trial Court on 21-12-1967 noting that the obstruction is caused by the judgment- debtor who had failed in obtaining the order of injunction in OS. No. 153 of 1967. The petitioners filed IA. No.V on 22-12-1967 praying that the warrant of delivery of possession may be recalled for the reasons set out in the affidavit accompanying the said application. No warrant of delivery of possession appears to have been issued. In the meantime, objections were filed to IA. No.V opposing the petitioners' prayer. On the request of the petitioners, the application came to be posted for evidence. Evidence was adduced and a few documents were marked as exhibits. Certified copies of the orders passed in MA. No.25 of 1967 and the order passed on IA. No.I in OS. No. 153 of 1967 were marked as Exts.P-2 and P-3. After hearing the arguments of parties, the trial Court passed an order on 20-1-1968 rejecting IA. No.V and directing execution to proceed. It is against this order, that the petitioners have come up with this revision petition.
(3.)It was contended by Sri G. R. Ethirajulu Naidu, the learned Counsel for the petitioners, that in view of the obstruction caused by the petitioners for delivery of possession, the only remedy open to the decree-holder was to make an application under Or.21, R.97 CPC. Unless tthis is done, the Court is incompetent to investigate the merits of the rival contention of the parties. It was submitted that the decree-holder made the application tor possession under Or.21, R.35 CPC. The order under execution could be given effect to and delivery be ordered only as against persons bound by the decree and who refuse to vacate the premises. It was contended that the petitioners became partners on 5-8-1955 and the order of eviction, was passed on 23-2-1962; their interests as partners to be in possession of the property came into existence earlier; the decree-holder not having impleaded them as parties to the HRC. proceedings, they were not bound by the decree, and therefore, the decree-holder cannot avail himself of the provisions of Or.21, R.35 CPC. He therefore submitted that the only course open to the decree-holder was to make an application under Or.24, R.97 CPC., obtain orders under Or.21, R.98 CPC., if he succeeded in establishing that the resistance or obstruction was caused without any just cause by the petitioners at ihe instigation of the judgment-debtor.
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