The Karnataka High Court dismissed an appeal filed u/s .96 r/w Order 41 Rule 1 of CPC, against the order dated 06.06.2015 passed on an application on the file of the Addl. Sr. Civil Judge and CJM, rejecting application no.1 to 4 filed u/o 21 rule 97 of CPC. The Court observed that upon dismissal of the suit for partition in the original suit filed by the appellants, the instant applications being subject to the said order of dismissal would also be liable to be dismissed.
Brief Facts:
The appellants are the sisters of one Abdul Samad, who is said to have expired prior to 22.01.2007 leaving behind respondent Nos.6 and 7 to succeed to his estate including the suit schedule properties. Respondent Nos.6 and 7 executed a Sale Agreement dated 22.01.2007 in favor of respondent Nos.1 to 5 herein for a total sale consideration of Rs.11,25,000/- and received a sum of Rs.5 lakhs by way of advance and as part of sale consideration. Subsequently, since respondents Nos.6 and 7 refused to perform their part of the contract, respondents Nos.1 to 5 instituted a suit for specific performance of the Sale Agreement.
The said suit after the contest was decreed in favor of respondents Nos.1 to 5. Aggrieved by the said impugned judgment and decree dated 14.07.2010, respondents Nos.6 and 7 preferred an appeal which was also dismissed. Subsequently, on 29.06.2012, respondent Nos.1 to 5 instituted the execution proceedings. In the said execution proceedings, the appellants herein filed the instant applications under Order 21 Rule 97 CPC interalia contending that they had independent right, title, interest, and possession over the suit schedule properties and were entitled to contest the execution proceedings as obstructors/objectors. These were rejected by the Trial Court and hence, the present appeal.
Contentions of the Appellants:
The Learned Counsel for the Appellants submitted that the Trial Court failed to consider and appreciate the material on record, which indicates that the appellants had succeeded to the suit schedule properties as tenants-in-common along with respondent Nos.6 and 7 upon the demise of Abdul Samad.
Contentions of the Respondents:
The Learned Counsel for the Respondents submitted that the Executing Court has correctly and properly considered and appreciated the entire material on record and proceeded to reject the applications by coming to the conclusion that the appellants, who were merely sisters of late Abdul Samad did not possess independent right, title, interest or possession over the suit schedule properties.
Observations of the Court:
The Court noted that the sole ground on which the appellants claim right over the suit schedule properties was that they were sisters of Abdul Samad upon whose demise, the appellants became entitled to share in the suit schedule properties.
The Court observed that any order passed in proceedings under Order 21 Rule 97 would be subject to the result of a pending suit. In other words, upon dismissal of the suit for partition in the original suit filed by the appellants, the instant applications being subject to the said order of dismissal would also be liable to be dismissed.
The Court said that if a suit is dismissed for non-prosecution under Order 9 Rule 8 CPC, the only remedy available to the appellants – plaintiffs was to file an application seeking restoration of the suit under Order 9 Rule 9 CPC within the prescribed period and the same having undisputedly not been done by the appellants – plaintiffs, the present applications which are in the nature of a suit and since the order to be passed would be in the nature of a decree under Order 21 Rule 103 CPC, the applications would be barred under the principles underlying under Order 9 Rule 9 CPC.
The decision of the Court:
The Karnataka High Court, dismissing the appeal, held that the impugned order passed by the Trial Court cannot be said to suffer from any illegality or infirmity nor can the same be said to be capricious or perverse warranting interference by this Court in the present appeal.
Case Title: Begum Fauzia Banu & Ors. v. Smt. Zubeda
Coram: Hon’ble Justice S. R. Krishna Kumar
Case no.: REGULAR FIRST APPEAL NO.653 OF 2016 (RES)
Advocate for the Appellant: Mr. Showri H R
Advocate for the Respondent: Mr. S A Maruthi Prasad
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