K.S. GURUSHANKAR Vs. SRI S.K. MANIKYAM CHARITABLE TRUST

JUDGEMENT

(1.) HEARD Sri K.R. Ashok Kumar, learned Counsel appearing for revision petitioner/objector and Sri B. Papegowda, learned Counsel appearing for respondent No. 1/decree holder.

(2.) IT is contention of Sri K.R. Ashok Kumar, learned Counsel appearing for revision petitioner/objector, that executing court ought to have extended an opportunity to objector/applicant by permitting him to tender oral evidence to establish the fact that he was a tenant of premises in question and he was not claiming any right through Judgment debtor and was having an independent right and by virtue of said right, he was in possession and enjoyment of premises in question. He submits that non -consideration of rent receipts (three numbers) produced before executing court by the objector along with application in its proper perspective by executing court has resulted in great prejudice to revision petitioner, since without considering said issue as to, whether objector should be granted an opportunity or not, summarily application filed by objector under Order 21 Rules 97 to 99 of Civil Procedure Code came to be dismissed. He would also submit that, in the absence of lease agreement (written lease), there is no prohibition for agreement in oral lease with the land lord and in the instant case, objector had entered into a oral lease with the land lady Smt. N.R. Shallamma and had paid rents and said receipts (three numbers) issued by her which came to be produced were not considered by the executing court at all. He would elaborate his submissions by contending that even findings recorded by the executing court to the effect that objector had been examined as a witness namely as DW -2 in SC No. 2319/2011 and as such he was very much aware of those proceedings initiated against defendant, but did not get himself impleaded in the said proceedings, would not be a ground to prevent the objector from filing the application in question to object to a decree being executed against him by virtue of an order under Order 21 Rules 97 to 99 of Civil Procedure Code. He would also contend that prima -facie material produced by the objector would demonstrate that he has an independent right over the property in question and as such objector ought to have been permitted to tender oral evidence and in support of the same, he should have been permitted to tender documentary evidence also. Non consideration of these aspects by the executing court has resulted in an erroneous order being passed. He would also submit that, no reasons have been assigned by the executing court to reject the application and reasons to be assigned in an order would be the hallmark for any decision and as such he prays for allowing revision petition by setting aside the order. In support of his submissions, he has relied upon following rulings:

(3.) HAVING heard the learned Advocates appearing for parties and on perusal of order passed by executing court, it would indicate that executing court has taken note of fact that objector is none other than brother of Judgment debtor and all the family members are in possession and enjoyment of different portions of premises in the building in question. In respect of plaint schedule premises, ejectment suit came to be filed by the plaintiff in SC No. 2319/2011, which was preceded by issuance of legal notice to defendant. Though said legal notice was received by the defendant, he did not replied to the same. In fact present objector was examined in said suit as DW -2 and he was very much aware of the proceedings. It is also found by the executing court that rent receipts produced by objector in SC No. 2319/2011 did not indicate that objector is a tenant of premises in question. Except the alleged rent receipts (three numbers), no other documentary evidence was tendered by the objector. Hence, executing court has rejected the application filed under Order 21 Rules 97 to 99 of Civil Procedure Code. There cannot be any dispute with regard to proposition of law that an objector claiming an independent right in respect of property which is put into execution has right to object to the decree at the time of such decree put into execution.