Smt Juliyan Crasta vs Smt K G Hamsalatha
2022 Latest Caselaw 1843 Kant

                                            W.P.No.39735/2016
                                  1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 7TH DAY OF FEBRUARY, 2022

                          BEFORE

        THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

         WRIT PETITION No.39735/2016 (GM - CPC)

BETWEEN

SMT. JULIYAN CRASTA
AGE 42 YRS,
W/O SRI. K.G. VINUP,
R/O NO.139, DEVI FARM HOUSE,
OLD KESARE, K.R. MILLS PO,
MYSORE.                                  ... PETITIONER

[BY SRI. ASHOK K.L., ADVOCATE]

AND

1.    SMT K G HAMSALATHA
      AGE 46 YRS,
      W/O SRI G.M. SHIVARAJU,
      R/O NO.277/2, 1ST CROSS,
      MARIGOWDA LAYOUT,
      MANDYA, MANDYA DISTRICT.

2.    SRI. K.G. VINUP
      AGE 49 YEARS,
      S/O SRI V GOSAPPA
      R/O NO.139, JANJAR 483,
      DEVI FARM HOUSE,
      KESARE VILALGE, KASABAL HOBLI,
      MYSORE TALUK, MYSORE.             ... RESPONDENTS

(BY SRI.P.B. AJIT, ADV. FOR R1;
    R2 - SERVED)
                                                      W.P.No.39735/2016
                                   2




      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS
PERTAINING TO EX.NO.347/2015 ON THE FILE OF THE PRL. SR.
CIVIL JUDGE AND C.J.M. AT MYSORE PERUSE THE ORDER DTED
05.03.2016 VIDE ANNEX-F AND SET ASIDE THE SAME AS
ILLEGAL ARBITRARY AND UNSUSTAINABLE AND ETC.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING - 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
                               ORDER

1. The Petitioner is before this Court seeking for the following

relief:

"a) Call for records pertaining to Ex.No.347/2015 on the file of the Principal Sr.Civil Judge and CJM at Mysore, peruse the order dated:05-03-2016 vide Annexure - F and set aside the same as illegal arbitrary and unsustainable, and

b) Pass such other orders as this Hon'ble Court deem fit under circumstances of the case including award of cost of this petition in the interest of justice and equity."

2. Execution No.347/2015 had been filed seeking for the

execution of the judgment and Decree passed in

O.S.No.837/2014.

W.P.No.39735/2016

3. O.S.No.837/2014 had been filed by the first Respondent

herein against the second Respondent herein seeking for a

direction to the second Respondent herein, who was the

Defendant therein to vacate and hand over the vacant

possession of the plaint schedule property to the Plaintiff.

4. The Petitioner is the wife of the 2nd Respondent herein, the

2nd Respondent was the Defendant in the Suit as also

Judgement Debtor in the execution Petition and 1st

Respondent herein was the Plaintiff in the Suit and Decree

holder in the Execution Petition. Petitioner was not a party

to the Suit but filed an application under Order 21 Rule 97

in the execution proceedings.

5. The parties are referred to by their rank in the trial court.

6. The case of Plaintiff therein is that Defendant is her

brother. The suit schedule property has been allotted to

the share of Plaintiff's father V.Gosappa and mother

Smt.A.L.Saraswathy as per Registered Partition deed

dated 08.04.1999. The parents of the Plaintiff therein had W.P.No.39735/2016

given the suit schedule property along with the said land

to the Plaintiff under a registered Settlement Deed dated

26.06.2009 by virtue of which the Plaintiff became the

absolute owner of the suit schedule property and has been

paying the taxes etc.

7. It is alleged that Defendant, who is none other than her

brother, has been allowed to occupy the premises

gratuitously on a temporary basis. Despite the lapse of

time, Defendant did not vacate the premises, and as such,

a legal notice came to be issued. Despite the legal notice,

Defendant therein did not vacate the premises leading up

to the Suit.

8. In the said Suit, the Defendant, though served, after

service of summons did not appear in the Court and as

such, he was placed ex-parte, and the matter continued

for trial.

9. After trial, the trial Court considering the evidence on

record, including the documentary evidence, more W.P.No.39735/2016

particularly the reply to a notice dated 07.07.2014

produced at Ex.P6, took cognisance of the admission made

in the reply notice that Defendant had accepted the

partition deed and that he was allowed to stay in the

schedule property gratuitously and on that basis, decreed

the Suit directing the Defendant therein to vacate and

handover the plaint schedule property, within three

months from the date of the order.

10. Plaintiff filed Execution No.347/2015 seeking for executing

the aforesaid judgment and Decree. In the said

proceedings, an application under Order XXI Rule 97 and

101 read with Section 151 of CPC came to be filed by the

Petitioner herein seeking for withdrawal/suspension of the

order of ejectment, pending disposal of the application. In

the said application petitioner claimed that she was the

wife of Defendant/ Judgement Debtor therein and that the

issue of partition between Plaintiff and Defendant has not

been resolved amicably. Her Husband was mentally unfit

to act or to do any acts, deeds or things since he was a W.P.No.39735/2016

chronic and compulsive addict to liquor and drugs. In the

said application, it is alleged that she came across the

notice on the above matter, delivered at home, when she

challenged her Husband about the same, her Husband

pleaded ignorance and unawareness about the same. It is

only thereafter, that she engaged the services of an

Advocate and filed the aforesaid application. In the

affidavit in support of the said application, it was alleged

that the property is in joint possession of her Husband and

the Plaintiff. Hence, she cannot be ejected or evicted and

as such, relief aforesaid has been sought for.

11. The said application came to be objected too. After

hearing the parties, the Executing Court vide impugned

order dated 05.03.2016 rejected the said application.

12. The Executing Court was of the opinion that the

application was filed only to stall execution of the Decree

passed in O.S.No.837/2014. The application was devoid of

merits. If such a frivolous application has to be

considered, the Decree passed by the Court would be W.P.No.39735/2016

rendered only a paper decree and as such dismissed the

application. Being aggrieved by the same, the Petitioner

who was applicant therein is before this Court.

13. Sri. Ashok K.L., learned counsel for the Petitioner would

submit that

13.1. Defendant is a person of unsound mind and

therefore, the Petitioner has been appointed as a

guardian of the Defendant in G&WC No.35/2015

vide order dated 11.07.2017 and as such, she was

entitled to file an application objecting to the

execution of the Decree. This fact has not been

properly considered by the Execution Court.

13.2. When the Defendant was a person of unsound mind,

though he might not have entered appearance in the

Suit, a decree could not have been passed behind

his back and as such, the Petitioner being the wife of

respondent No.2 ought to have been permitted to

come on record and her objections be taken into W.P.No.39735/2016

consideration as regards the enforcement of the

Decree.

13.3. Subsequent to the Decree a suit in O.S.No.180/2017

has also been filed before the Principal Senior Civil

Judge at Mysore, wherein she represents her

Husband as his guardian and in the said Suit, relief

of partition and separate possession has been

sought for including the property subject matter of

the present proceedings, which is detailed as item

No.1 to the said Suit.

13.4. In such a background the Petitioner could not be

evicted from the premises and seeks for the writ

petition to be allowed.

14. Per contra, Sri.Vyshak, learned counsel appearing on

behalf of Plaintiff submits that

14.1. The application as also the present petition is an

abuse of the process of the Court inasmuch as in the

Suit in O.S.No.837/2014, the reply notice got issued W.P.No.39735/2016

by the Defendant, Husband of the Petitioner has

been produced as Ex.P6, which was taken into

consideration by the Trial Court. The said Ex.P6 was

issued in reply to the notice dated 07.07.2014,

though he does not have the date of the reply

notice, he submits that a reply was issued

subsequent to 07.07.2014 and in the reply, the

Husband of the Petitioner has clearly admitted the

partition dated 08.04.1999 as also his gratuitous

occupation of the property subject matter of the writ

petition.

14.2. The proceedings in G&WC No.35/2015 had been

filed in November, 2015 subsequent to the judgment

being passed in O.S.No.837/2014 on 26.02.2015

and the Suit in O.S.No.180/2017 was filed nearly

two years thereafter.

14.3. The Petitioner has no manner of right, title or

interest to object to the execution of a decree, which

has been passed in a valid manner after service of W.P.No.39735/2016

notice to the Defendant therein and the only option

that is available for the Petitioner was to challenge

the said Decree, which has not been done. The

Decree has attained finality and has been rightly

sought to be executed by filing of the Execution

proceedings in Execution No.347/2015.

14.4. He relies on the following judgments in support of

his contentions:

     i)    Brahmdeo Chaudhary vs. Rishikesh Prasad
           Jaiswal               and another [(1997) 3 SCC

therein, which were reproduced hereunder for easy reference.

"8. A conjoint reading of Order 21 Rules 97, 98, 99 and 101 projects the following picture:

(1) If a decree-holder is resisted or obstructed in execution of the Decree for possession with the result that the Decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 35, then the decree-holder has to move an application under Order 21, Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97, sub-rule (2) read with Order 21 Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without a W.P.No.39735/2016

just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order 21, Rule 98, sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate Court against such deemed Decree.

(2) If for any reason a stranger to the Decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on the spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order 21 Rule 99 CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order 21, Rule 98, sub-rule (1) CPC the executing Court can direct the stranger applicant under Order 21, Rule 99 to be put in possession of the property of if his application is found to be substanceless, it has to be dismissed. Such an order passed by the Executing Court disposing of the application one way or the other under Order 21, Rule 98, sub-rule (1) would be deemed to be a decree as laid down by Order 21, Rule 103 and would be appealable before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order 21, Rule 101.

9. In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of Decree for possession obtained by a decree-holder and whose attempts at executing the said Decree meet with rough weather. Once resistance is offered by a purported stranger to the Decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist in only under Order 21, Rule 97, sub-rule (1) and he cannot bypass such obstruction and insist on re-issuance of warrant for possession under Order 21, Rule 35 with the help of police force, as that course W.P.No.39735/2016

would amount to bypassing and circumventing the procedure laid down under Order 21, Rule 97 in connection with removal of obstruction of purported strangers to the Decree. Once such an obstruction is on the record of the Executing Court it is difficult to appreciate how the Executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order 21, Rule 99, CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the Decree who claims any independent right, title or interest in the decretal property is to go by Order 21, Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the Decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order 21, Rule 99. Order 21, Rule 97 deals with a stage which is prior to the actual execution of the Decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order 21, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the Decree are clearly contemplated by the aforesaid scheme of Order 21 and it is not as if that such a stranger to the Decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order 21, Rule 97 in this connection by taking the view that only remedy of such stranger to the Decree lies under Order 21, Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of W.P.No.39735/2016

possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist, who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the Decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard or merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the Executing Court, therefore, would fail also on the ground of non- compliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order 21, Rule 97, CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree- holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate Suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 and 103 would remain a complete code and the sole remedy for the parties concerned to have their grievances once and for all finally resolved in execution proceedings themselves."

ii) Kayalvizhi vs. S.Parthasarathy and another 2008 [SCC Online Madras 504], more particularly para Nos.12, 24 and 25,

"12. As contended by the learned counsel for the first Respondent, under Order 21, Rule 106, C.P.C., there is a provision for setting aside the ex parte order passed against any party, however, the revision petitioner did not file any petition before the W.P.No.39735/2016

Court below for setting aside the impugned order passed by the Court below. Only with a view to protract the proceedings, preferred this Civil Revision Petition.

24. As contended by the learned counsel appearing for the first Respondent, this Court has to consider the bona fide of the revision petitioner. Based on the conduct of the parties, bona fide can be decided by any court. The revision petitioner filed the Suit only in the year 2006, though the first respondent / decree- holder had obtained a contested decree on 27.11.2001 and got the sale deed executed, pursuant to the order of the Court on 28.01.2004. In the affidavit filed by the first respondent / decree-holder, it has been clearly stated that the schedule of property is the self-acquired property of the second respondent / judgment-debtor and the second Respondent had entered into the registered agreement on 15.05.1998 to sell the property in favour of the first respondent / decree-holder. After contest, the Decree was passed and that the revision petitioner and the second respondent / judgment debtor are living as Husband and wife under one roof. In the affidavit, the first respondent / decree- holder has averred that the revision petitioner was fully aware of the sale agreement between himself and the second respondent / judgment-debtor, the Suit that was decreed, after contest and also the sale deed executed in favour of the first respondent / decree-holder. However, the revision petitioner has not chosen to file any counter before the Court below, denying the averments. She has not filed any supporting document to show that the property was the joint family property of the second respondent / judgment-debtor and his sons. Admittedly, there is no decree of divorce between the revision petitioner and the second respondent / judgment-debtor. The averments of the first respondent / decree-holder that the revision petitioner and the second respondent / judgment-debtor are living under one roof is also not controverted.

25. As contended by the learned counsel for the first respondent / decree-holder, there is no necessity for the sons of the revision petitioner and the judgment-debtor to be represented by their mother, the revision petitioner in the Suit in O.S.No.192 of 2006, when father is available. Within 38 days from the date of filing of the Suit, on 27.09.2006, the revision petitioner herein W.P.No.39735/2016

obtained an ex-parte decree against her Husband, the judgment-debtor. In the copy of the Decree, the share of the Plaintiff's therein has been stated as 2/3rd, but in the obstruction petition that had been changed as ¾ by the revision petitioner for the reasons best known to the revision petitioner. The aforesaid circumstances show that there is no bona fide grounds for filing the petition by the revision petitioner, even she has not arrayed the minor children of the revision petitioner and he judgment-debtor as parties in the obstruction Petition.

Similarly, the first respondent / decree-holder was not arrayed as Defendant in the Suit filed by the revision petitioner. "

iii) Silverline Forum Pvt. Ltd., vs. Rajiv Trust and another [(1998) 3 SCC 723,] more particularly para No.14.

"14. It is clear that the executing Court can decide whether the resistor or obstructor is a person bound by the Decree and he refused to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary. "

14.5. Based on the above, Sri.Vyshak learned counsel

submits that the Execution Court has rightly rejected

the application filed by the Petitioner and the

present writ petition also being devoid of merit is

also to be dismissed.

W.P.No.39735/2016

15. In rejoinder, Sri. Ashok K.L., learned counsel for the

Petitioner, submits that

15.1. The Suit in O.S.No.837/2014 was filed only to usurp

the property. The Petitioner and Defendant in the

said Suit were not living together, and Plaintiff, who

is the sister of Defendant, is trying to usurp the

property to the detriment of the Petitioner by

misusing the situation or relationship between the

parties.

15.2. Subsequent to the impugned order, an application

under Order XXI Rule 29 has been filed seeking for

stay of the execution of Decree pending disposal of

the G&WC No.35/2015, which is yet to be

considered by the Execution Court.

16. Heard Sri.Ashok K.L., learned counsel for the Petitioner,

Sri.Vyshak, learned counsel for the Respondent.

W.P.No.39735/2016

17. A very innovative and novel manner of obstruction of the

execution decree has been resorted to by the Petitioner,

wherein the Petitioner claims that the judgment debtor

husband is a person who is mentally unsound and

therefore, he could not appear and contest the Suit in

O.S.No.837/2014, wherein the Decree has passed and

since she has obtained an order appointing her as a

guardian of her unsound Husband, she be permitted to

obstruct the Decree which has been passed.

18. Shockingly, a perusal of the cause title would indicate that

the Petitioner is residing in a different address than her

Husband - respondent No.2. This Court repeatedly

enquired with the learned counsel for the Petitioner, if that

is so, the learned counsel stated that the petitioner and

respondent No.2 - husband were not residing together and

that they were residing separately on account of

differences between them.

19. If that be so, there is gross violation of the order passed in

G&WC No.35/2015, wherein the Petitioner was appointed W.P.No.39735/2016

allegedly as a guardian of an unsound husband. The

Petitioner who claimed to be taking care of her unsound

Husband, sought to be appointed as his guardian. She was

so appointed with the condition that the Petitioner would

take care of the Husband, all his basic needs and would

not act adverse to the interest of the Husband. The facts

leading upto the present petition establish that she has

grossly violated the same. She is not taking care of the

health and basic needs of the Husband since she is not

residing with the allegedly unsound Husband.

Furthermore, these proceedings have been filed against

the Husband who is arraigned as the 2nd Respondent.

20. On merits, it is seen that a legal notice dated 07.07.2014

has been issued by Plaintiff to Defendant, which was

replied to by Plaintiff through a legal reply notice. If that

were to be so, the Defendant was in a sound state of mind

to engage the services of a Lawyer, reply to a legal notice

and contend therein that there was a partition deed, which W.P.No.39735/2016

was being affected and that he was residing in the

property.

21. If that be so and that reply notice not having been denied

by the Petitioner, the said reply notice would be binding

both on the Petitioner and the Defendant, which has been

rightly taken into consideration by the Trial Court while

dealing in O.S.No.837/2014 and decreeing it.

22. The application in I.A.No.2/2015 has been filed in

Ex.No.347/2015 under Order XXI Rules 97 and 101 of

CPC. Order XXI Rules 97 and 101 of CPC, reads as under:

"97. Resistance or obstruction to possession of immovable property.-(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

(2) Where any application is made under sub- rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

101. Question to be determined.-All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the applicant, and not by a separate suit and for W.P.No.39735/2016

this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."

23. Order XXI Rule 97 provides for a decree holder to file an

application contending that a third party is objecting to the

execution of a decree and seek for necessary orders from

the executing Court. In the present case, the obstructor

has filed an application under Order XXI Rule 97, who is

not eligible to exercise any rights under the said provison.

24. Even if for the sake of arguments it were to be accepted,

that an obstructor should file an application under Order

XXI Rule 97. The obstructor could not be a party to a

decree but has to be a third party.

25. In the present case, the Petitioner claims to be guardian of

the judgment debtor. Thus, the Petitioner cannot be said

to be a third party to the proceedings so as not to be

bound by any decree which has been passed against the

Judgement Debtor - Husband. In such a situation, Order

XXI Rule 97 would not come to the rescue of the

Petitioner. If at all the Petitioner is aggrieved by the same, W.P.No.39735/2016

the Petitioner is required to file an appeal challenging the

judgment and Decree passed in O.S.No.837/2014, since

she claims to represent the Judgement Debtor as his

guardian.

26. The contention of Sri.Ashok K.L., learned counsel for the

Petitioner is that the Suit in O.S.No.180/2017, which was

subsequently filed for partition, therefore, the proceedings

cannot go on and the Petitioner be permitted to obstruct

the execution of the Decree passed in O.S.No.837/2014.

The mere filing of such a suit cannot obviate or frustrate a

judgment and Decree validly passed in O.S.No.837/2014.

Moreso, when the judgment and Decree is not challenged

in the said Suit nor is their any challenge offered to the

said judgment and Decree by way of an appeal.

27. Under such circumstances, even this contention of the

learned counsel for the Petitioner is liable to be rejected.

28. As aforesaid, this appears to be a novel method of trying

to frustrate a valid judgment and Decree which has been W.P.No.39735/2016

passed. The manner in which a decree passed on

26.02.2015 has been put on hold till now i.e., 2022 falls

within the observations made by the Apex Court in Rahul

Shah vs Jinendrakumar Gandhi reported in (2021) 6 CC

418, requiring a re-look of the provisions of Order XXI, I

schedule to the CPC relating to the execution of a decree.

29. Considering the manner in which the proceedings have

been stalled by the Petitioner and having already held that

there is gross abuse of the process of the Court by filing

such applications. More so when the Petitioner and the

second Respondent under whom the petitioner claims are

admittedly not residing together, I deem it fit to award

cost to the first Respondent herein which is quantified at

Rs.5,000/-. The Petitioner shall make payment of the said

amount, within three months of this order.

The writ petition is dismissed accordingly.

Sd/-

JUDGE KG