Lakshmamma vs Saraswathi
2021 Latest Caselaw 3782 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 10TH DAY OF NOVEMBER, 2021

                        BEFORE

          THE HON'BLE MR. JUSTICE R.NATARAJ

        CIVIL REVISION PETITION No.495/2019

BETWEEN

1.     LAKSHMAMMA
       W/O. LATE NARASEGOWDA
       AGED ABOUT 70 YEARS

2.     GOWRAMMA
       D/O. LATE NARASEGOWDA
       AGED ABOUT 45 YEARS

3.     UMAVATHI
       D/O. LATE NARASEGOWDA
       AGED ABOUT 35 YEARS

4.     MAHADEVA
       S/O. LATE NARASEGOWDA
       AGED ABOUT 33 YEARS

       ALL RESIDENTS AT SOMANAHALLI VILLAGE
       BANGALORE SOUTH TALUK,
       BANGALORE - 560082.
                                      ... PETITIONERS
[BY SRI. MANIAN K.B.S., ADVOCATE FOR P3;
SRI. MOHANA C., ADVOCATE FOR P1, 2 & 4)

AND

1.     SARASWATHI
       D/O. LATE NARASEGOWDA
                             2



     AGED ABOUT 48 YEARS
     RESIDENT AT SOMANAHALLI VILLAGE
     BANGALORE SOUTH TALUK,
     BANGALORE - 560 082.

2.   S.C.NARASAMMA
     W/O. NARASIMHAMURTHY
     AGED ABOUT YEARS
     RESIDENT OF SOMANAHALLI VILLAGE
     BANGALORE SOUTH TALUK
     BANGALORE - 560082.
                                  ... RESPONDENTS

(BY SRI.Y.D.SHIVASHANKARA, ADVOCATE FOR R1)

     THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF CPC., AGAINST THE ORDER DATED
20.09.2019 PASSED IN EX.PETITION NO.31/2013 ON THE
FILE OF THE II ADDL. CIVIL JUDGE, BANGALORE RURAL
DISTRICT, BANGALORE ALLOWING THE APPLICATION
FILED UNDER ORDER 21 RULE 90 R/W SECTION 151 OF
CPC FOR SETTING ASIDE THE RE-CONVEYANCE DEED
EXECUTED IN FAVOUR OF THE PETITIONERS AND THE 1ST
RESPONDENT, HEREIN.

     THIS CIVIL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:

                           ORDER

1. This Civil Revision Petition is filed by the decree

holder Nos.1, 3 to 5 in Execution Petition

No.31/2013 pending consideration before the II

Additional Civil Judge, Bengaluru Rural District,

Bengaluru (henceforth referred to as 'Executing

Court') challenging the order dated 20.09.2019.

2. The Executing Court allowed an application filed by

one of the decree holder under Order XXI Rule 90

read with Section 151 of the Code of Civil Procedure,

1908 (henceforth referred to as 'of CPC') and set

aside the re-conveyance deed dated 10.10.2017.

3. The facts of the case as are evident from the records

are that a suit in O.S.No.2/1990 was filed for a

decree to direct the defendants to execute a re-

conveyance of the suit schedule property in favour of

the decree holders. The said suit after contest was

decreed in terms of the judgment and decree dated

25.09.1997. The defendant No.1 in the said suit

filed R.A.No.165/1997 which was dismissed on

11.01.2005, following which, a Regular Second

Appeal was filed before this Court in

R.S.A.No.665/2005 which was also dismissed on

22.08.2013 and an S.L.P.(c) No.6599/2015

preferred there from before the Hon'ble Supreme

Court was also rejected on 10.02.2017. The

proceedings thus ended between the parties.

4. The decree holder No.2 filed Execution Petition

No.10/2012 on 02.04.2012 which is stated to be

pending till date. In the meanwhile, another

Execution Petition was filed in Execution Petition

No.31/2013 by the decree holder Nos.1, 3 to 5. The

Executing Court noticed the claim of the decree

holders and issued a notice to the judgment debtor

to comply with the decree passed in O.S.No.2/1990.

On the failure of the judgment debtor, the Executing

Court appointed Sri. S.N.Kumarswamy as a Court

Commissioner. The draft of the document was

approved by the Executing Court and thereafter, the

Commissioner admitted the execution of the

document before the Sub Registrar, Jayanagar (BTM

Layout), Bengaluru and the re-conveyance deed was

executed on behalf of the judgment debtor in favour

of the GPA holder. It is stated that the decree holder

thereafter, transferred the property in favour of Smt.

Jayalakshmi in terms of a deed of absolute sale

dated 09.11.2017. Thereafter, one of the decree

holders who is the respondent No.1 herein claimed

that she had not filed Execution Petition No.31/2013

and that she had not authorized the advocate to file

Execution Petition No.31/2013. She also contended

that she had not executed any power of attorney in

favour of the decree holder No.1 who appeared

before the Sub Registrar, Jayanagar (BTM Layout),

Bengaluru to present the document for registration.

With these and other allegations, the respondent

No.1 herein filed an application before the Executing

Court in Execution Petition No.31/2013 under Order

XXI Rule 90 of CPC to set aside the re-conveyance

deed dated 10.10.2017.

5. The Executing Court in terms of its order dated

20.09.2019 held that the decree holder Nos.1, 3 to 5

filed Execution Petition No.31/2013 with an intention

to defraud the decree holder No.2 as the latter had

already filed Execution Petition No.10/2013 to

execute the decree in O.S.No.2/1990. Therefore, it

held that there was no necessity to file Execution

Petition No.31/2013. Based on this cryptic finding,

the Executing Court allowed the application filed by

the decree holder and set aside the re-conveyance

deed dated 10.10.2017.

6. Being aggrieved by the aforesaid order, the present

* petition is filed.

7. The learned counsel for the petitioner submitted that

effect of the decree in O.S.No.2/2019 was to execute

a re-conveyance deed in favour of the decree holders

and the same had been achieved in Execution

Petition No.31/2013. He contended that there was

no reason, whatsoever before the Executing Court to

go beyond and hold that the decree holder No.2 was

defrauded. He contended that as a matter of fact,

*Deleted vide Chamber Order dated 23.12.2021

the decree holder No.2 was a beneficiary of the re-

conveyance deed. He submitted that the decree

holder had filed a suit in O.S.No.1261/2018

challenging the alienation of the property in question

by the decree holders in favour of one Jayalakshmi.

He therefore submitted that the Executing Court was

not right in setting aside the re-conveyance deed

which according to him was brought about legally

and in accordance with law.

8. Per contra the decree holder No.2 who is the

contesting respondent No.1 in this revision petition

has contended that the decree holder Nos.1, 3 to 5

have conspired to file an Execution Petition

No.31/2013 and that they have forged the signature

of respondent No.2 in the Execution Petition. He

further contended that decree holder No.2 had not

authorized any advocate to file Execution Petition

No.31/2013. He further contended that Execution

Petition No.31/2013 was filed without disclosing the

earlier petition in Execution Petition No.10/2012. He

further submitted that the decree holder No.1 under

a forged power of attorney accepted the execution of

the re-conveyance deed before the Sub-Registrar

Jayanagar (BTM Layout), Bengaluru.

9. He submitted that based on the forged power of

attorney, the decree holder Nos.1, 3 to 5 have

illegally conveyed the property including the property

of decree holder No.2 to one Smt. Jayalakshmi and

in that regard a suit is filed for setting aside the

same. He also submitted that he has filed a criminal

case which is now registered in C.C.No.15887/2021

before the CJM, Bengaluru Rural District. He

therefore would submitted that the impugned order

passed by the Executing Court need not to be

disturbed. He further submitted that any finding

that may be recorded by this Court in so far as the

legality of the re-conveyance deed would impair the

other proceedings which are pending before various

Courts.

10. I have considered the submissions made by the

learned counsel for the parties.

11. As is evident from the judgment and decree in

O.S.No.2/1990, it was for re-conveyance of the suit

property. The said decree attained finality on

22.08.2013 in R.S.A.No.665/2005 and a Special

Leave Petition filed in S.L.P.(c) No.6599/2015 was

rejected by the Supreme Court of India. The decree

holders were all representing together till the

Supreme Court in S.L.P.(c) No.6599/2015. It is no

doubt true that the decree holders have once filed

Execution Petition No.10/2012 and without disclosing

the pendency of the earlier Execution Petition had

filed Execution Petition No.31/2013. The Executing

Court having regard to the fact that there is an

enforceable decree in favour of the decree holders,

has taken further steps to execute the re-

conveyance deed in favour of the decree holders

which culminated in the execution of a deed of re-

conveyance in favour of all the decree holders. The

contention of the decree holder No.2 that she had

not authorized any advocate to file Execution Petition

No.31/2013 is of no consequence since the final

result was the execution of the re-conveyance deed

in favour of all decree holders which had been

achieved in Execution Petition No.31/2013.

Therefore, the decree holder No.2 could not have

any grievance or grouse whatsoever in the re-

conveyance deed that was registered not only in the

names of decree holder Nos.1, 3 to 5 but also in the

name of decree holder No.2. Consequently, the

decree holder No.2 could not seek setting aside the

re-conveyance deed in favour of all the decree

holders. The Executing Court without considering

this fundamental aspect by a cryptic order set aside

the re-conveyance deed in favour of the decree

holders, unmindful of the fact that the re-conveyance

deed was not only in favour of the decree holder

No.2 but also in favour of the decree holder Nos.1, 3

to 5.

12. Therefore, the impugned order passed by the

Executing Court does not disclose due application of

mind and deserves to be interfered with. Hence, this

* petition is allowed and the impugned order

passed by the Executing Court dated 20.09.2019 in

Execution Petition No.31/2013 is set aside.

13. However, the execution of re-conveyance deed in

favour of the decree holders in Execution Petition

No.31/2013 will not come in the way of the decree

holder No.2 pursuing C.C.No.15887/2021 and will

also not come in the way of the decision in

O.S.No.1261/2018. In view of the fact that the re-

conveyance deed is already executed in Execution

Petition No.31/2013, the question of keeping

Execution Petition No.10/2012 pending, does not

arise. Hence, Execution Petition No.10/2012 is

*Deleted vide Chamber Order dated 23.12.2021

ordered to be closed. Any observations made herein

is only for the limited purpose of deciding this

Revision Petition and shall not effect the parties to

independently establish their case before the

appropriate Court/s.

Sd/-

JUDGE

GJM