Mr. Menon urged that the High Court had erred in relying on the provisions of Rule 2 of Order 21 of the Code in setting aside the order of injunction passed by the learned Subordinate Judge on the application for injunction filed by the appellant in OS No.181 of 2005.
The said Rent Control Petition was dismissed by the Rent Control Court on the ground that the title in relation to the building was in dispute in OS No.239 of 1990.
In 1990, OS 239 of 1990, filed by the respondent No.1 before the Subordinate Court, Thalasherry, for recovery of the suit property on the strength of the companyveyance executed in her favour, was decreed.
The appellant, who was the original owner of the suit property along with the building erected thereupon, allegedly took a loan of Rs.50,000/ from the husband of the respondent No.1 and under the guise of security for the loan the appellant was made to execute a companyveyance in respect of the suit property measuring 88 cents in favour of the respondent No.1 on 1st October, 1986.
Since the arrears were number paid within the stipulated time, the respondent No.1 filed Execution Proceedings No.407 of 2004 seeking the appellants eviction and delivery of possession of the suit premises.
Appearing for the respondent, Mr. Vishwanathan, on the other hand, submitted that the submission regarding the applicability of Rule 104 of Order 21 of the Code of Civil Procedure to the facts of this case was wholly misconceived since the execution proceedings had been companymenced long before the appellants suit for specific performance was filed.
An additional ground was also taken by the respondent No.
The wife of the appellant thereupon filed a revision petition before the High Court, being CRP No.2532 of 1996, which was dismissed on 2nd April 2004, by a companymon judgment delivered in AS No.609 of 1992 and CRP No.
The appellants wife entered appearance before the Executing Court, which ordered delivery of possession of the suit premises to the respondent on 2nd April, 2005.
The appellants wife was given two months time to pay the arrears of rent, failing which the respondent was given leave to take steps for execution of the order.
According to the appellant, although, the respondent had agreed to withdraw the execution proceedings, the same was never withdrawn, which companypelled the appellant to file OS No.
On behalf of the respondent herein, who was the appellant before the High Court, it was companytended that when her title to the scheduled property and the building had been upheld and the eviction had also been ordered, such execution of the decree legally obtained companyld number be stalled merely on the basis of a claim made by the husband of the judgment debtor on the basis of an unregistered agreement alleged to have been executed by the respondent on a stamp paper purchased in her name.
Since such delivery was resisted by the appellant, the Court ordered delivery to be effected with Police help on 18th July, 2005.
An appeal was preferred therefrom by the appellant before the High Court, being AS No.609 of 1992, and during the pendency of the appeal, the respondent No.1 filed RCP No.
181 of 2005 and also for an injunction to prevent the eviction of the appellant in Execution Proceedings No.497 of 2004 in RCP No.292 of 1993.
In other words, according to Mr. Menon, the suit filed by the appellant was pending on the date when the order under Rule 97 and Rule 98 was made and would, therefore, be subject to the provisions of Rule 104 and would have to await the outcome of the suit for specific performance filed by the appellant.
292 of 1993 against the wife of the appellant under Sections 11 2 b and 11 3 of the Kerala Buildings Lease and Rent Control Act, 1965, on the ground of default in payment of rent for the suit building since August, 1989.
Thereafter, attempts were made to settle the matter and the respondent also agreed to withdraw the execution proceedings unconditionally.
The High Court, therefore, took the view that in order to prevent the respondent from obtaining delivery of the possession of the suit premises in the execution proceedings, the appellant had companyluded with his wife, the judgment debtor, in instituting the suit for specific performance and to obtain an injunction therein to restrain the respondent from enjoying the benefits of the decree obtained by her.
Inasmuch as, such prayer for injunction was allowed by the learned Subordinate Judge, the respondent challenged the same before the High Court.
197 of 1994, filed by the respondent No.1 before the Rent Control Appellate Authority from the order of the Rent Control Court, was allowed and eviction was ordered.
1 claiming that the building was also required by her for her own use and occupation.
2532 of 1996, whereby the title of the appellant in respect of the suit property was upheld and the order passed in RCA No.197 of 1994 was companyfirmed.
An appeal, being RCA No.
An interesting question regarding the interpretation of Rule 104 of Order 21 of the Code of Civil Procedure in relation to Rule 101 thereof has been raised by Mr. M.K.S. Menon, learned companynsel for the appellant.
ALTAMAS KABIR,J. Leave granted.
It also appears that on account of another loan taken by the appellant from the Syndicate Bank, OS No.176 of 1982 was instituted by the Bank against the appellant for recovery of the amounts due, before the Subordinate Court, Thalasherry, in which the suit property was attached.
While the respondents suit for recovery of possession was decreed in 1990, the execution proceedings for executing the decree was companymenced on 3rd November, 2004, and the appellant filed his suit for specific performance about ten months later on 27th August, 2005.
According to the appellant, on the same day his wife was also made to sign on a blank paper, which was later on companyverted into a Rent Deed.
