Civil Law; Mohandas K.B. Vs. Syamala [Kerala High Court, 01-08-2016]

Civil Procedure – Recovery of possession of the building – Execution Petition – Subject matter of the Suit (building) destroyed – delivery could not be effected – Whether a ground for dismissing the Execution Petition.

Held:- Even if the building is destroyed, the landlord is entitled to recover the land in which the building existed. So, the court below was not justified in dismissing the application on the ground of destruction of the building which is the subject matter of the lease. The court below ought to have identified the property in which the building existed and effected delivery of the same to the decree holder. So, the order dismissing the Execution Petition is set aside and the matter is remitted to the court below for fresh disposal in accordance with law.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

K. Ramakrishnan, J.

C.R.P.No.139 of 2016

Dated this, the 01st day of August, 2016

E.P. NO.23/2015 IN OS. NO.159/1994 OF MUNSIFF MAGISTRATE COURT, MANNARKAD

REVISION PETITIONER/PETITIONERS/DECREE HOLDERS/ LEGAL HEIRS OF THE PLAINTIFFS

MOHANDAS K.B. AND ANOTHER

BY ADVS.SRI.C.P.PEETHAMBARAN, SMT.MINI.V.A.

RESPONDENTS/RESPONDENTS/JUDGEMENT DEBTORS/ LEGAL HEIRS OF DECEASED DEFENDANTS

SYAMALA AND OTHERS

O R D E R

1. The above revision has been filed against the order, dismissing E.P.No.23/2015 in O.S.No.159/1994 on the file of the Munisff Court, Mannarkkad. The suit was filed by the predecessor of the revision petitioners as O.S.No.159/1994 for recovery of possession of the building which was let out to the predecessor of the respondents. The building is situated in an area where the provisions of Rent Control Act is not extended. The suit was decreed as per Annexure A-1 Decree and it was confirmed in A.S.No.24/2002 on the file of the Sub Court, Ottapalam. The original plaintiff died during the pendency of the appeal and the present petitioners have been impleaded as additional respondents in the appeal as his legal heirs and the appeal was also dismissed. The present petitioners filed E.P.No.23/2015 for executing the decree which was dismissed by the court below on the ground that the subject matter of the suit is destroyed and delivery could not be effected. This is being challenged by the revision petitioners before this Court.

2. Though notice was served on the respondents, they did not appear.

3. Heard Shri.C.P.Peethambaran, the learned counsel for the revision petitioners.

4. The counsel for the revision petitioners submitted that the dismissal of the Execution Petition as not executable due to destruction of the building is unsustainable in law as the court below ought to have delivered the property in which the building existed. He had relied on the decisions reported in Kandaru Veettil Ramakrishnan’s Son Preman Vs. Kadaruveettil Ramakrishnan’s Son Gopi, ILR 2016 (1) KER 746, Shaha Ratansi Khimji Vs. Proposed Kumbhar Sons Hotel Pvt. Ltd., 2014 (3) KLT 1014 (SC) and Kalpakam Amma Vs. Muthurama Iyer, 1994 (2) KLT 424.

5. The fact that the suit was filed by the predecessor of the revision petitioners for eviction of the building from the possession of the predecessor of the respondents as O.S.No.159/1994 on the file of the Munsiff Court, Mannarkad and that was decreed and appeal filed against the same was also dismissed, is not in dispute. It is also an admitted fact that the revision petitioners filed E.P.No.23/2015 for execution of the decree, as the original plaintiff died during the pendency of the appeal and the present revision petitioners have been impleaded as his legal heirs in that appeal.