Karnataka High Court
Ningappa S/O Mudakappa Gonal And Ors vs Gangamma W/O Amarappa Ammanawar And Anr on 27 June, 2024
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NC: 2024:KHC-K:4340-DB
RFA No.200055 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.200055 OF 2021 (SP)
BETWEEN:
1. NINGAPPA
S/O MUDAKAPPA GONAL,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURE,
2. MANAPPA
S/O MUDAKAPPA GONAL,
AGED ABOUT 51 YEARS,
OCC: AGRICULTURE,
Digitally signed by 3. BHIMANNA @ BHIMARAYA
BASALINGAPPA
SHIVARAJ S/O MUDAKAPPA GONAL,
DHUTTARGAON
AGED ABOUT 43 YEARS,
Location: HIGH
COURT OF
KARNATAKA ALL R/O: DEVARGOL VILLAGE,
SHORAPUR TALUK,
YADGIR DISTRICT,
NOW AT RASTAPUR VILLAGE,
SHORAPUR TALUK,
YADGIR DISTRICT
...APPELLANTS
(BY SRI S.B. HANGARKI, ADVOCATE)
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RFA No.200055 of 2021
AND:
1. GANGAMMA
W/O AMARAPPA AMMANAWAR,
AGED ABOUT 45 YEARS,
OCC: HOUSEHOLD AND AGRICULTURE
R/O: RASTAPUR VILLAGE,
TQ: SHAHAPUR, DIST: YADGIRI.
2. BASAWARAJ
S/O MUDAKAPPA GONAL,
AGED ABOUT 39 YEARS,
OCC: AGRICULTURE,
R/O: RASTAPUR VILLAGE,
TQ: SHAHAPUR, DIST: YADGIRI.
...RESPONDENTS
(BY SRI R.S.SIDHAPURKAR, ADVOCATE FOR C/R-1;
R2 - SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 R/W ORDER 41 RULE 1 OF C.P.C., PRAYING TO ALLOW THIS
APPEAL WITH COSTS, BY SETTING-ASIDE THE ORDER PASSED
BY THE COURT OF THE SENIOR CIVIL JUDGE AND J.M.F.C.,
SHAHAPUR IN EX.CASE NO.77/2019 DATED 24.05.2021 ON
I.A.NO.2 FILED UNDER ORDER XXI RULE 97 AND 58 READ
WITH SECTION 151 OF C.P.C., AND THEREBY CONSEQUENTLY
ALLOW THE I.A.NO.2 FILED UNDER ORDER XXI RULE 97 AND
58 READ WITH SECTION 151 C.P.C., BY DISMISSING THE
EXECUTION PETITION NO.77/2019, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS REGULAR FIRST APPEAL COMING ON FOR HEARING,
THIS DAY, ASHOK S. KINAGI J., DELIVERED THE
FOLLOWING:
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RFA No.200055 of 2021
JUDGMENT
This Regular First Appeal is filed by the appellants challenging the order dated 24.05.2021 passed on I.A.No.2 filed under Order XXI Rules 97 and 58 read with Section 151 of CPC, in Execution Case No.77/2019 by the Senior Civil Judge and JMFC, Shahapur (for short, hereinafter referred to as 'the executing Court').
2. For the sake of convenience, the parties are referred to as per their ranking before the executing Court. The appellants are the objectors, respondent No.1 is the decree holder and respondent No.2 is the judgment debtor.
3. Brief facts of the case are that, the objectors filed an application in the execution petition contending that the decree passed in O.S.No.30/2018 in respect of execution petition schedule property is not binding on their rights and title over the properties. It is contended that the objectors and judgment debtors are the brothers. -4-
NC: 2024:KHC-K:4340-DB RFA No.200055 of 2021 Since the judgment debtor is a junior member of their joint family, he had no exclusive right, title or interest over the execution petition schedule property to execute the agreement of sale in favour of the decree holder. The objectors, their sisters and brothers have filed suit in O.S.No.44/2018 for the relief of partition and separate possession against the judgment debtor. The said suit was decreed on 17.12.2018. In the said compromise decree, the execution petition schedule property was allotted to the share of objector Nos.1 and 2. In view of the same, the execution petition filed by the decree holder is not maintainable. It is contended that the decree holder is not entitled for a decree for specific performance of contract. It is contended that the children of the judgment debtor have also filed suit in O.S.No.138/2019 in respect of execution petition schedule property. Hence, prayed to allow the application filed by the objectors.
4. The decree holder filed objections contending that the application filed by the objectors is not -5- NC: 2024:KHC-K:4340-DB RFA No.200055 of 2021 maintainable and the objectors have no right, title or interest over the execution petition schedule property. It is contended that the decree holder filed suit in O.S.No.30/2018 for the relief of specific performance of contract contending that the judgment debtor agreed to sell the execution petition schedule property to the decree holder and the judgment debtor committed breach of contract. Therefore, the decree holder was forced to file suit in O.S.No.30/2018. In the said suit, the objectors filed an application to implead them as defendants. The said application came to be rejected. The said order of rejection has attained finality. It is stated that during pendency of the suit in O.S.No.30/2018, the judgment debtor colluding with his siblings got filed suit in O.S.No.44/2018 for partition and separate possession. In the said suit, the objectors filed an application to implead the decree holder. The said application came to be dismissed. The compromise decree passed in O.S.No.44/2018 is not binding on the decree holder as he is not a party to the -6- NC: 2024:KHC-K:4340-DB RFA No.200055 of 2021 said suit and the said compromise decree is a collusive decree. Hence, prayed to dismiss the application.
5. The executing Court, on the basis of the pleadings of the parties, framed the following issues:
i) Whether the objectors prove that
they are having independent right
over the execution petition
schedule property?
ii) What order or decree?
6. The objectors in order to substantiate their application got examined objector No.2 as P.W.1 and also got marked 70 documents at Exs.P1 to P70. The decree holder has not entered into witness box. The decree holder has submitted that he has no oral evidence on the application and the judgment debtor inspite of giving an opportunity has not adduced evidence on the application.
7. The executing Court, after recording the evidence of the objectors, hearing on both sides and on -7- NC: 2024:KHC-K:4340-DB RFA No.200055 of 2021 assessment of the material placed on record, answered issue No.1 in the negative and issue No.2 as per the final order and dismissed I.A.No.2 with costs vide order dated 24.05.2021.
8. The objectors, aggrieved by the order passed on I.A.No.2 in Execution Case No.77/2019 by the Senior Civil Judge and JMFC, Shahapur, have filed this Regular First Appeal.
9. Heard the learned counsel for the objectors and also learned counsel for the decree holder.
10. Learned counsel for the objectors submits that the objectors filed suit in O.S.No.44/2018 against the judgment debtor for relief of partition and separate possession in respect of execution petition schedule property. In the said suit, the objectors filed an application to implead the decree holder as a defendant. The decree holder appeared and objected for the said application. The said application came to be rejected. He submits that the -8- NC: 2024:KHC-K:4340-DB RFA No.200055 of 2021 objectors and judgment debtor due to intervention of the respectable persons have amicably settled the dispute and filed a compromise petition in O.S.No.44/2018 and the Court has passed the compromise decree. In the said compromise decree, the execution petition schedule property was fallen to the share of the objectors. Further, the compromise decree is binding on the decree holder as he is claiming right through the judgment debtor. The decree holder has not challenged the compromise decree passed in O.S.No.44/2018. He further submitted that the execution petition schedule property was the ancestral property of the judgment debtor and objectors. The said property was mutated in the name of the judgment debtor. Mere mutation entries do not convey or extinguish any title and he submits that the entries are relevant only for the purpose of collection of land revenue. He further submits that the judgment debtor alone has no right to alienate the execution petition schedule property. Hence, he submitted that the executing Court has committed an error in dismissing the application.
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11. Further, in order to buttress his arguments, he has placed reliance on the judgments of the Hon'ble Apex Court in the case of H.Lakshmaiah Reddy and others vs. L.Venkatesh Reddy reported in AIR 2015 SC 2499, Ramdas vs. Sitabai and others reported in AIR 2009 SC 2735 and Triloki Nath Singh vs. Anirudh Singh (D) Thr. Lrs., and Others reported in AIR 2020 SC 2111. On these grounds, he prays to allow the appeal.
12. Per contra, learned counsel for the decree holder supports the impugned order passed by the executing Court and prays to dismiss the appeal.
13. We have perused the records and considered the submissions of the leaned counsel for the parties.
14. To decide the appeal, the following points would arise for our consideration:
1. Whether the objectors prove that the order passed on I.A.No.2 is arbitrary and erroneous?
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2. What order or decree?
15. Point No.1: It is not in dispute that the decree holder filed a suit for specific performance of contract in O.S.No.30/2018 contending that the judgment debtor agreed to sell the execution petition schedule property in favour of decree holder. The judgment debtor failed to perform his part of the contract. The decree holder, aggrieved by the inaction on the part of the judgment debtor in not executing the registered sale deed, filed suit in O.S.No.30/2018. In the said suit, the judgment debtor filed written statement and contested the case. Further, the objectors also filed an application to implead them as defendants in the said suit. The said application was rejected by the Trial Court. The objectors did not challenge the order passed on the said application and the said order has attained finality. During the pendency of the said suit, objectors filed suit in O.S.No.44/2018 for the relief of partition and separate possession against the judgment debtor. In the said suit, objectors filed an
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NC: 2024:KHC-K:4340-DB RFA No.200055 of 2021 application to implead the decree holder as defendant. The decree holder filed objection to the said application. The Trial Court rejected the application for impleadment of the decree holder as defendant. The objectors did not challenge the order and the said order has attained finality. After rejection of the application, the objectors and the judgment debtor colluding with each other got filed compromise petition and obtained compromise decree in order to deprive the right of the decree holder. The decree holder is not a party to the said suit. The decree passed in O.S.No.44/2018 is not binding on the decree holder. From the perusal of the records, it clearly discloses that as on the date of entering into an agreement of sale by the judgment debtor in favour of the decree holder, the said property stood in the name of the judgment debtor. The decree holder after verifying the records found that the property stood in the name of the judgment debtor.
16. Objector No.2 was examined as PW.1. He has reiterated the contents of the application in the
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NC: 2024:KHC-K:4340-DB RFA No.200055 of 2021 examination-in-chief and produced the documents. Ex.P1 is the certified copy of the plaint in O.S.No.30/2018 filed by the decree holder against judgment debtor for specific performance of contract. Ex.P2 is the written statement filed by the judgment debtor in O.S.No.30/2018. Ex.P3 is the certified copy of the issues framed in O.S.No.30/2018. In the said suit, the decree holder was examined through power of attorney holder who has reiterated the plaint averments. Ex.P4 is the certified copy of the deposition of Amarapa who is the power of attorney holder of the decree holder. Ex.P5 is the deposition of Ashok who has been examined by the decree holder as PW.2 in O.S.No.30/2018. Ex.P6 is the Mutation register. Exs.P7 to P23 are the RTC extract in respect of land in Sy.No.180/2. Ex.P24 is the certified copy of the plaint in O.S.No.44/2018 filed by the objectors and others against the judgment debtor. Ex.P25 is the certified copy of the compromise decree passed in O.S.No.44/2018. Ex.P26 is the certified copy of the compromise petition filed by the parties in O.S.No.44/2018. Ex.P27 is the application filed
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NC: 2024:KHC-K:4340-DB RFA No.200055 of 2021 under Order I Rule 10 read with Section 151 of CPC to implead the present decree holder as defendant in the said suit. Ex.P28 is the certified copy of the objection filed by the decree holder to the application. Ex.P29 is the certified copy of the order passed on the said application in O.S.No.44/2018. The said application filed by the objectors was rejected by the Trial Court vide order dated 24.11.2018. Ex.30 is the certified copy of the registered agreement of sale executed by the judgment debtor in favour of the decree holder which discloses that the judgment debtor agreed to sell the execution petition schedule property in favour of the decree holder for valid consideration. Exs.P31 and P32 are the mutation registers. Exs.P33 to P62 are the record of rights in respect of land in Sy.No.180/1. Ex.P63 is the certified copy of the compromise decree passed in O.S.No.138/2019. Ex.P64 is the certified copy of the plaint wherein the judgment debtor's wife and children have filed suit for partition and separate possession against the judgment debtor in respect of land in Sy.No.180/5. Exs.P65 to P67 are the
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NC: 2024:KHC-K:4340-DB RFA No.200055 of 2021 record of rights in respect of land bearing Sy.No.265/1. Ex.P68 is the record of right in respect of land in Sy.No.265/2. Ex.P69 is the record of rights in respect of land in Sy.No.261/2. Ex.P70 is the certified copy of the mutation extract in respect of land bearing Sy.No.265/*/2.
17. From the perusal of the records produced by the objectors, it discloses that the judgment debtor has entered into an agreement of sale with the decree holder in regard to execution petition schedule property for consideration of Rs.16,40,000/-. Accordingly, the decree holder has paid a sum of Rs.10,40,000/- as an advance amount and balance was agreed to be paid at the time of execution of registration of sale deed. The judgment debtor did not comply with the terms and conditions. Accordingly, the decree holder filed suit in O.S.No.30/2018. The said suit was filed by the decree holder on 19.06.2018 and the judgment debtor filed written statement on 15.12.2018. During the pendency of the suit in O.S.No.30/2018, objectors filed suit in
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NC: 2024:KHC-K:4340-DB RFA No.200055 of 2021 O.S.No.44/2018 on 03.08.2018. The said suit got filed by the judgment debtor through the objectors in order to defeat the rights of the decree holder. Further, children of judgment debtor have also filed suit in O.S.No.138/2019. Even the said the suit was ended in compromise and the compromise decree was drawn on 08.02.2020. As could be seen from the records, the judgment debtor is filing suits through siblings and children. Further, the records produced by the decree holder discloses that though the objectors have filed application to get implead themselves in the suit in O.S.No.30/2018, the said application was rejected by the Trial Court. They have also made an attempt to implead the decree holder in O.S.No.44/2018. Even in the said suit, the application was rejected by the Trial Court. The objectors themselves have produced copy of the record of rights i.e., Exs.P10 to P13 are the record of right in respect of land bearing Sy.No.180/2 measuring 4 acres 17 guntas. The said land was mutated in the name of the judgment debtor as per the partition dated 15.09.2005. The objectors did not challenge the entries in
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NC: 2024:KHC-K:4340-DB RFA No.200055 of 2021 the name of the judgment debtor and record of rights stood in the name of the judgment debtor and objector No.3. There was partition in the family of the judgment debtor and objectors and in the said partition, the execution petition schedule property was allotted to the judgment debtor and he became the owner of the execution petition schedule property and he has got every right to alienate the same for family and legal necessity. The objectors have failed to establish that they have got independent right over the execution petition schedule property.
18. It is further case of the objectors that the execution petition schedule property is the undivided joint family property. The said contention is inconsistent with the documents produced by the objectors, at one stretch, the objectors contend that it is an undivided joint family property and at another stretch, the objectors claim that they are the absolute owners of the execution petition scheduled property by virtue of the compromise decree
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NC: 2024:KHC-K:4340-DB RFA No.200055 of 2021 passed in O.S.No.44/2018. The objectors have got doubt of their own title with regard to the execution petition schedule property. The judgment debtor in order to protect the execution of registered agreement of sale has got filed the suits through his brothers and his children in O.S.No.44/2018 and O.S.No.138/2019 and both the suits were ended in compromise. The act of the judgment debtor in filing the suit after suit is not bonafide and further, objectors are not having any independent right over the execution petition schedule property.
19. Further, learned counsel for the decree holder has filed the memo along with the registered sale deed executed in favour of the decree holder pursuant to the judgment and decree passed in O.S.No.30/2018. The executing Court, considering the material on record, was justified in passing the impugned order. We do not find any error in the impugned order. We decline to interfere with the order passed by the executive Court.
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20. The judgments relied upon by the learned counsel for the objectors are not applicable to the case on hand. The Hon'ble Apex Court in the case of Triloki Nath Singh (supra), held that the compromise decree can be challenged by a stranger. There is no dispute in regard to the law laid down by the Hon'ble Apex Court. In the instant case, the objectors ought to have challenged the judgment passed in O.S.No.30/2018.
21. Learned counsel for the objectors has also placed reliance on the judgment of the Hon'ble Apex Court in the case of Ramdas (supra) wherein it is held that an undivided share of co-shares may be a subject matter of sale, but possession cannot be handed over to vendee unless property is partitioned by metes and bounds amicably. Admittedly, in the instant case, there was partition effected between the family members of the judgment debtor and in the partition, the execution petition schedule property has fallen to the share of the judgment debtor and the judgment debtor has executed
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NC: 2024:KHC-K:4340-DB RFA No.200055 of 2021 an agreement of sale in favour of the decree holder. Admittedly, the execution petition schedule property is not the joint family property of the objectors and judgment debtor. The judgment debtor was the owner of the execution petition schedule property. Hence, the judgment relied upon by the learned counsel for the objectors is not applicable to the case on hand.
22. Further, he has also relied upon the judgment of the Hon'ble Apex Court in the case of H.Lakshmaiah Reddy (supra) wherein the Hon'ble Apex Court held that mutation entry does not convey or extinguish any title. There is no dispute that mutation entry does not convey or extinguish any title. In the said judgment, the plaintiff filed suit for declaration of title and consequential relief of permanent injunction on the basis of the mutation entries. In the instant case, the judgment debtor has acquired the property under the partition and the same was mutated in the name of the judgment debtor. As observed above, the said mutation entry was not challenged by the objectors.
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NC: 2024:KHC-K:4340-DB RFA No.200055 of 2021 It is for the objectors to establish that they have got independent right over the execution petition schedule property and they have failed to establish the same. Hence, the said judgment is not applicable to the case on hand.
23. Further, as observed above, the judgment debtor has already executed the sale deed during the pendency of the appeal, as there was no interim order. In view of execution of the registered sale deed, nothing further survives for consideration in this appeal.
24. In view of the above discussion, we answer point No.1 in the negative.
25. Point No.2: Accordingly, we proceed to pass the following:
ORDER The Regular First Appeal is dismissed.
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NC: 2024:KHC-K:4340-DB RFA No.200055 of 2021 The order dated 24.05.2021 passed on I.A.No.2 in Execution Case No.77/2019 by the Senior Civil Judge and JMFC, Shahapur, is confirmed.
Sd/-
JUDGE Sd/-
JUDGE NB List No.: 1 Sl No.: 33 Ct;Vk