S P R Group (Holding) Pvt Ltd vs Haji Quder Since Dead By His Lrs
2022 Latest Caselaw 6065 Kant

                             1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 5TH DAY OF APRIL, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                R.S.A NO.638 OF 2013(SP)

BETWEEN:

S.P.R GROUP (HOLDING) PVT LTD
REP BY M THIMMEGOWDA
S/O LATE MUTHEGOWDA
OFF: MANCHANAYAKANAHALLI BIDADI HOBLI
RAMANAGARA TALUK
BENGALURU RURAL DISTRICT
                                               ...APPELLANT
(BY SRI.UDAY HOLLA, SR.COUNSEL FOR
SRI.VIVEK HOLLA, ADVOCATE)

AND:

1. HAJI QUDER
SINCE DEAD BY HIS LRS

A). A MAJID QUADER
S/O LATE HAJI QUADER
AGED ABOUT 55 YEARS

B). A AZEEZ QUADER
S/O LATE HAJI QUADER
AGED ABOUT 52 YEARS

C). SMT ZAINUB QUADER
W/O LATE HAJI QUADER
AGED ABOUT 75 YEARS
                              2


ALL ARE R/AT G7, SILVER OAK BUILDING,
GARDEN APARTMENTS,
VITTAL MALLYA ROAD,
BENGALURU-01

2. SRI YERRAPPA
MAJOR
S/O RAMAIAH
R/AT MANASA GARMENTS, NO 52/1
17TH CROSS, NEAR CANARA BANK
M C LAYOUT, BENGALURU-40

3. B RAMESH
MAJOR
S/O BHAJANLAL, MAJOR

4. ANJURANI D/O BHAJANLAL
AGED ABOUT 47 YEARS

NO.3 & 4 ARE R/AT NO 40/4
KUMARPARK WEST, 5TH MAIN
BENGALURU 20

5. SMT BHARATHI
W/O MADHOO
AGED ABOUT 37 YEARS

6. SMT BHAVANA
W/O RAMESH
AGED ABOUT 34 YEARS

NO.5 & 6 ARE R/AT NO 16, CRESCENT ROAD,
HIGH GROUNDS, BENGALURU 01

                                           ...RESPONDENTS

(BY SRI.ADITYA SONDHI, SR.COUNSEL FOR SRI.SYED
KHAMRUDDIN, ADVOCATE FOR C/R1(B);
SRI.P.CHINNAPPA BY INDUS LAW, ADVOCATE FOR R1(A&C);
                                   3


NOTICE NOT ORDERED IN R/O R2 TO R6)

     THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 20.3.12 PASSED IN R.A.NO.55/2012
ON THE FILE OF DISTRICT AND SESSIONS JUDGE, RAMANAGARA,
DISMISSED THE APPEAL AND CONFIRMING THE JUDGEMENT AND
DECREE DTD 12.7.12 PASSED IN EXECUTION PETITION
NO.505/2003 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE &
CJM, RAMANAGARA, DISMISSING THE OBJECTIONS/ WRITTEN
STATEMENT FILED BY THE OBSTRUCTER/OBSTRUCTER/JRD.NO.6
U/ORDER XXI RULE 98 OF CPC.

    THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                            JUDGMENT

The captioned second appeal is filed by third party

obstructer questioning the judgment and decree dated

20.3.2012 passed in R.A.No.55/2012 by the learned District

and Sessions Judge, Ramanagara, confirming the order dated

12.07.2012 passed by the Senior Civil Judge and C.J.M.,

Ramanagara in Execution No.505/2003 on an application filed

under Order 21 Rule 98 of CPC.

2. The facts leading to the case are as under:

The suit property was originally owned by one Yerrappa

who executed an agreement to sale on 12.1.1983 in favour of

one Haji Quader. The agreement holder i.e. Haji Quader on

account of breach on the part of Yerrappa in performing his

part of the contract was compelled to file the suit for specific

performance of contract in O.S.38/1983 against the original

owner. The owner namely Yerrappa during pendency of the

suit alienated the suit schedule property under registered sale

deed dated 24.2.1984 in favour of respondents 3 to 6/JDRs 2

to 5. The Court having examined the rival contentions decreed

the suit by judgment and decree dated 10.6.1988 against

judgment debtors 1 to 5.

2(a) The original plaintiff Haji Quader filed execution

petition in Ex.P.12/1988. The present appellant who is

arrayed as judgment debtor No.6 contended that he has

purchased the suit schedule property from respondents-

judgments debtors 2 to 5 under registered sale deed dated

28.10.1991.

2(b) The present appellant/Judgment debtor No.6 has

filed an obstruction application under Order 21 Rule 98 of CPC

before the executing Court. The appellant claimed that he was

a bonafide purchaser for value without notice and claims that

he has improved the property by investing huge amount and

is running a distillery by employing several people and

therefore, specifically contended that the present decree is not

at all executable.

     2(c) To         substantiate           his            claim       the

appellant/obstructer/judgment         debtor        No.6     led    ocular

evidence and has examined himself as D.W.2 and produced

documentary evidence vide Exs.D1 to D48. The decree-holder

has also led ocular evidence and has produced six documents

which are marked as Exs.P1 to P6.

2(d) The Executing Court having examining the rival

contentions has answered point No.2 in affirmative and has

recorded a finding that the transaction between

respondents/judgments debtors 2 to 5 and present

appellant/JDR 6 is hit by Section 52 of Transfer of Property Act

and has proceeded to reject the obstruction application filed

under Order 21 Rule 98 of CPC.

2(e) Feeling aggrieved by the order of the Executing

Court, the present appellant preferred an appeal before the

first appellate Court. The first Appellate Court having

assessed the material on record has concurred with the

findings of the executing Court and has also recorded a finding

that the transaction between the appellant herein and

respondents/judgment debtors 3 to 6 is hit by Section 52 of

Transfer of Property Act. The contention of the appellant

herein that the execution petition is barred by time was also

negatived by the appellate Court.

It is against these concurrent judgments, the

appellant/Obstructer is before this Court.

3. The learned Senior Counsel appearing for appellant

would vehemently argue and contend before this Court that

original owner Yerrappa after due deliberations and

negotiations sold the suit schedule property in favour of

respondents 3 to 6/judgment debtors 2 to 5, which was well

within the knowledge of Haji Quader and the said Haji

Quader(agreement holder) under whom the present decree

holder is asserting right never objected for sale and therefore,

would contend that these aspects are not dealt by the

Executing Court while considering the claim of the

appellant/obstructer herein. He would also strenuously argue

and contend that the present execution petition is barred by

limitation and is also not maintainable as earlier execution

petitions were withdrawn without seeking leave of the Court.

4. Learned Senior Counsel, to buttress his arguments

on limitation, would bring to the notice of this Court that the

decree holder withdrew E.P.8/1993 without leave of the Court

on 11.12.1995. The decree holders are intending to execute

the decree for specific performance passed in O.S.No.38/1983.

Therefore, he would contend that in terms of Article 136 of

Limitation Act, the present execution petition is not at all

maintainable and the same is barred by limitation.

4(a) To buttress his arguments he has placed reliance

the following judgments of the Apex Court:

(i) 1997(7) SCC 556 [P.K. Ramachandran .vs. State of Kerala and another;

(ii) 2006(13) SCC 470 [Sankar Dastidar .vs. Banjula Dastidar(Smt) and another; and

(iii) (1979) 2 SCC 572 [Mohamed Hasnuddin .vs. State of Maharashtra]

4(b) Placing reliance on the above said judgments, the

learned Senior Counsel would contend that the limitation must

be applied with all its vigor and Courts have no discretion to

extend limitation on the ground of equity. He would further

point out that duty is cast on the Court to reject a claim which

are barred by limitation even in absence of plea. Placing

reliance on judgment rendered in the case of Union of India

.vs. Karnatala Electricity Board1 he would further contend

that limitation is neither technicality nor unjust and duty is

ILR 1987 Kar 2552

cast on the Court to enforce it as long and dormant claims

often lead to cruelty than justice.

5. While questioning the conduct of the decree-holder

he would point out that the decree holder is guilty of filing

successive execution petitions and the same are withdrawn by

the decree holder at different point of time without seeking

leave of the Court and therefore, he would contend that

withdrawal of execution petitions would not extend limitation,

which is twelve years from the date of passing of a decree.

Referring to the several withdrawals, he would strenuously

argue and contend that the decree holder has no unfettered

right to unilaterally withdraw the execution cases, more

particularly when there are alienations pending execution. To

buttress his arguments, he has placed reliance on Full Bench

judgment rendered by the Patna High Court in the case of

Kishundutt .vs. Gulabchand2. He has also placed reliance

on the judgment rendered by a Co-ordinate Bench of this

AIR 1948 PATNA 113

Court in the case of Krishna Reddy, since deceased by

his L.Rs .vs. The Special Additional LAO, Bangalore

Development Authority and another3

6. Placing reliance on the grounds urged in the second

appeal and also the judgments cited supra, learned Senior

Counsel would conclude his arguments by contending that the

present appellants valuable rights are not examined by the

executing Court and the appellate Court. He would contend

that the present appellant/obstructer has independent right in

the suit schedule property and when there is an obstruction by

a person other than the judgment debtor having absolute right

over the suit schedule property, there is a mandatory

procedure contemplated under the Code to determine the right

of the obstructer and therefore, mandatory procedures cannot

be circumvented.

7. On these set of grounds, the learned Senior

Counsel would contend that the concurrent judgments

ILR 2013 KAR 5352

rendered by the Courts below are not at all sustainable and

would warrant interference at the hands of this Court as

substantial question of law would arise in the light of the

principles laid down by the Apex Court and Co-ordinate bench

of this Court in the judgments cited supra.

8. Learned Senior Counsel appearing for the decree

holder repelling the contentions canvassed by the learned

Senior Counsel appearing for the appellant/obstructer would

however contend that the grounds raised by the appellant-

obstructer in regard to limitation is put to rest by this Court in

CRP.No.274/2009. Taking this Court through the said

judgment, the learned Senior Counsel would contend that the

execution petition came to be dismissed on the ground of

limitation and the decree holder was compelled to approach

this Court in CRP.No.274/2009. He would point out to this

Court that the decree holder placed on record the exparte

interim injunctions granted against the decree holder from

executing the decree. This Court having taken judicial note of

grant of interim injunctions was of the view that decree holder

was prevented from filing the execution petition and therefore,

allowed the revision and the execution petition was restored

on file and therefore, would contend that Article 136 of the

Limitation Act has no application to the present case on hand.

9. Placing reliance on the judgment of the Apex Court

rendered in Balbir Singh .vs. Ashok Kumar4 he would

contend that merely because execution petition was withdrawn

without liberty would not in itself attract the provisions of

Section 11 of CPC.

The learned Senior Counsel further placing reliance on

the judgment of the Apex Court rendered in the case of

Silverline Forum Pvt. Ltd. .vs. Rajiv Trust and another

and the subsequent judgment rendered by the Apex Court in

the case of Menka Gupta Vs. Umashree Devi6 would

contend that the present appellant/obstructer is a transferee

2014 SCC OnLine HP 2412

(1998) 3 SCC 723

2019(7) SC J 306= 2019 SCC OnLine Senior Counsel 1671

pendente lite and therefore, has no right to obstruct the

execution of the decree. On these set of grounds, he would

contend that no substantial question of law arise in the

present case on hand. Therefore, the grounds urged in the

appeal memo would not warrant any interference attracting

the ingredients of Section 100 of CPC and therefore, seeks for

dismissal of the appeal.

10. Heard the learned Senior Counsel appearing for

appellant and learned Senior Counsel appearing for

respondents and perused the judgments under challenge. I

have also given my anxious consideration to the judgments

cited by both the parties.

11. The preliminary contention raised by the

appellant/obstructer that the execution petition is not

maintainable on the ground of limitation cannot be acceded to

as rightly pointed by the learned Senior Counsel appearing for

respondent-decree holder. The said question is put to rest by

this Court in CRP.No.274/2009. The decree-holder feeling

aggrieved by the order of the executing Court in dismissing

the execution petition on the ground of limitation was before

this Court in the above said civil revision petition. The Co-

ordinate Bench of this Court while examining the right of

decree-holder in terms of Section 15 of the Limitation Act

found from the materials that on account of temporary

injunction granted in O.S.No.80/1994, the present

respondents-decree holders were injuncted from executing the

decree for specific performance. Therefore, this Court was of

the view that the petitioners therein was prevented from filing

execution petition on the ground of ex parte interim order

operating against them, the period during which the

temporary injunction was in force was required to be excluded

while computing the period of limitation. On these set of

reasoning has allowed the civil revision petition and the

execution petition was restored on file. The present appellant

was arrayed as respondent No.6 in the above said CRP.

Therefore, the order passed by this Court in CRP.No.274/2009

binds the appellant and he is estopped from re-agitating the

question of limitation in the present execution petition.

12. The second contention raised by the

appellant/obstructer in the present case on hand is that once

an obstruction is offered by a stranger to the decree, the

remedy available to the decree-holder against such an

obstruction is only to have recourse to Order 21 Rule 97 of

CPC and he cannot bypass such an obstruction and insist for

warrant for possession. The appellant has also contended that

since his possession is based on a title, he is entitled to get his

claim adjudicated even prior to losing possession to the

decree-holder. The obstructer also contends before this Court

that he is not bound by the decree as he has an independent

right, title and interest and therefore, he cannot be

dispossessed and therefore, the contention is raised that the

obstructer is entitled to seek adjudication under Rule 101 of

CPC. This contention cannot be entertained as the

appellant/obstructer has not placed any material on record to

demonstrate that he has an independent title than that of

judgment debtor. The material on record clearly indicates

that the present appellant is a purchaser pendete lite. The

original agreement holder filed a suit for specific performance

of contract based on an agreement dated 12.1.1983 in

O.S.No.38/1983. Respondents 3 to 6 purchased the suit

property from the original owner Yeerappa under registered

sale deed dated 24.02.1984. Respondents 3 to 6 sold the suit

schedule property in favour of the appellant under four

different sale deeds dated 28.10.1991. All these significant

details clearly indicate that the present appellant is not

asserting any independent title but is claiming under the

judgment debtor. It is a trite law that a person bound by the

decree includes a person claiming through the judgment

debtor. The principles laid down by the Apex Court in the case

of Usha Sinha (supra) are squarely applicable to the present

case on hand. While examining the scope of Rule 97, 98 and

102, the Apex Court was of the view that the third party

obstructer has to assert his independent right and the Court

while examining the said application has to adhere to the

principles laid down under the provisions of Order 21 Rule 102

of CPC. The Apex Court was of the view that the scope and

objection of Order 21 Rule 102 is based on justice, equity and

good conscience. The Apex Court has also held that

transferee from a judgment debtor is presumed to be aware of

the proceedings before a Court of law and therefore, would not

be entitled for any protection and the doctrine of lis pendence

is applicable to such a transferee.

13. Therefore, if all these significant details are taken

into consideration, this Court is of the view that the appellant

who has no independent right to the property cannot resist,

obstruct or object the execution of the decree and therefore,

both the Courts were justified in recording a categorical

finding that appellant is not entitled to get their claim

adjudicated.

14. For the foregoing reasons, the appeal is devoid of

merits. No substantial question of law arises and accordingly,

the appeal is dismissed.

Sd/-

JUDGE

*alb/-