Karnataka High Court
Chinnamma vs Amrutrao And Anr on 17 February, 2022
Bench: E.S.Indiresh
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE E.S.INDIRESH
WRIT PETITION No.202013/2018 (GM-CPC)
BETWEEN:
CHINNAMMA
W/O AMRUTRAO
AGED ABOUT 70 YEARS
OCC:HOUSEHOLD
R/O YARNALLI-D
TQ. AND DIST.BIDAR-585401.
... PETITIONER
(BY SRI SHIVAKUMAR KALLOOR, ADVOCATE)
AND:
1. AMRUTRAO S/O BAKKAPPA
AGED ABOUT 75 YEARS,
OCC: RETD. GOVERNMENT SERVANT
R/O H.NO.9-11-248, VIDYA NAGAR COLONY,
BIDAR-585401.
2. TARABAI D/O GUNDAPPA PATIL
W/O AMRUTHRAO
AGED ABOUT: 65 YEARS
R/O H.NO.9-11-248
VIDYA NAGAR COLONY
BIDAR-585401.
... RESPONDENTS
(BY SRI AMARESH S. ROJA, ADVOCATE)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT OF CERTIORARI QUASHING THE IMPUGNED ORDER
ANNEXURE-H DATED 25.06.2018 PASSED BY ADDL. DISTRICT
AND SESSIONS JUDGE, BIDAR IN M.A.NO.1/2018 AND DISMISS
M.A.NO.1/2018 FILED BY RESPONDENT NO.2 IN ENDS OF
JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
Though the matter has been listed for reporting
settlement on several dates, however, it is submitted by
the learned counsel appearing for the parties that the writ
petition be disposed of on merits. Accordingly, it is taken
up for disposal.
2. Heard the learned counsel appearing for the
parties.
3. The petitioner has assailed the order dated
25.06.2018 by the Additional District and Sessions Judge
Bidar, in Miscellaneous Appeal No.1/2018 filed by the
respondent No.2 in this writ petition.
4. Brief facts for adjudication of this writ petition
are that, the petitioner is the wife of the respondent No.1
and petitioner has filed O.S.No.24/1991 seeking
maintenance and the said suit came to be decreed on
04.12.1999, directing the respondent No.1 to pay monthly
maintenance of Rs.1,000/- per month to the petitioner. It
is also forthcoming from the facts narrated in the writ
petition that during the pendency of the suit, respondent
No.1 transferred the house property to the respondent
No.2 (claims to be the second wife of the respondent
No.1). In the meanwhile, the petitioner has filed
E.P.No.164/2007 on the file of the Principal Senior Civil
Judge and CJM at Bidar and sought to attach the aforesaid
properties which came to be allowed on 22.08.2015 as per
Annexure-B. It is also stated in the order dated
22.08.2015 that the sale deed dated 03.11.1992 executed
by the respondent No.1 in favour of the respondent no.2 is
hit by lis pendency as per the Section 52 of the Transfer of
Property Act. Thereafter, the respondent No.2 filed
application under Order XXI Rule 97 of Code of Civil
Procedure to raise the attachment order and to the said
application, petitioner herein has filed objection and the
executing Court, after considering the material on record
by order dated 23.10.2017 dismissed the application filed
by the respondent No.2. Being aggrieved by the said order
dated 23.10.2017 (Annexure-E), the respondent No.2
herein has filed M.A.No.1/2018 on the file of the Principal
District Judge, Bidar. The petitioner entered appearance
and filed objections to the said appeal contending that the
said appeal filed under Order XLIII Rule 1 of Code of Civil
Procedure is not maintainable against the dismissal of the
application passed under Order XXI Rule 97 of Code of
Civil Procedure. It is stated by the petitioner that the
appellate Court without considering the jurisdiction of
Court under Order XXI Rule 97 of Code of Civil Procedure
allowed the appeal and being aggrieved by the same, the
petitioner has approached this Court in this writ petition.
5. Sri Shivakumar Kalloor, learned counsel
appearing for the petitioner raised the legal issue stating
that against the order of dismissal under Order XXI Rule
97 of Code of Civil Procedure the respondent No.2 ought to
have approached the First Appellate Court under section
96 read with Order XLI Rule 1 of Code of Civil Procedure
and not under order XLIII Rule 1 of Code of Civil
Procedure. He further contended that the order passed by
the Executing Court on an application filed under Order
XXI Rule 97 is a decree insofar as aggrieved party is
concerned and therefore, appeal lies under section 96 read
with Order XLI Rule 41 of Code of Civil Procedure. In this
connection, he placed reliance on the decision of this Court
in the case of Mrs.Hemalatha Nayak Alias Vijay Laxmi
Shenoy v.U.Prabhakar Nayak and Another reported in
2017 (4) Kar.L.J. 312.
6. Per contra, Sri Amaresh S. Roja, learned
counsel appearing for the respondents sought to justify the
judgment and decree passed by the appellate Court in
M.A. No.1/2018.
7. It is evident from the writ papers that,
undisputedly, the second respondent has filed objection
under Order XXI Rule 97 of Code of Civil Procedure in
E.P.No.164/2007, which came to be rejected by the trial
Court. In that view of the matter, the respondent No.2
ought to have filed an appeal under Section 96 read with
Order XLI Rule 41 of Code of Civil Procedure before the
competent appellate Court, since the said order of
rejection by the trial Court under Order XXI Rule 97 of
Code of Civil Procedure by the third party is a decree under
Section 96 of the Code of Civil Procedure, therefore, I find
force in the submission made by the learned counsel
appearing for the petitioner and following the law declared
by this Court referred to above, the proceedings before the
Additional District and Sessions Judge, Bidar in
M.A.No.1/2018 is not maintainable and accordingly, the
impugned order dated 25.06.2018 is liable to be set aside
and accordingly, the writ petition is allowed. However,
liberty is reserved to the respondent No.2 to take
appropriate steps, if so advised.
Ordered accordingly.
Sd/-
JUDGE
VNR
