Kariyaiah vs Smt. Gowramma
2022 Latest Caselaw 1153 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 25TH DAY OF JANUARY, 2022

                        BEFORE

     THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA

     REGULAR SECOND APPEAL NO.597 OF 2010 (RES)

BETWEEN:

SRI. KARIYAIAH,
S/O KARIYAIAH @ SABALA,
AGED ABOUT 54 YEARS,
R/O DALAVAIKODIHALLI,
ALAGUR HOBLI, MALAVALLI TALUK,
MANDYA DISTRICT - 571 430.
                                          ... APPELLANT
(BY SRI. R.P.SOMASHEKARAIAH, ADV.)

AND:

1.     SMT. GOWRAMMA,
       W/O SANNAIAH @ MANTAIAH,
       AGED ABOUT 48 YEARS,
       HOUSE NO.450, SWARNASANDRA,
       MANDYA CITY - 571 430.

2.     SRI. SANNAIAH @ MANTAIAH,
       S/O JABALAIAH,
       AGED ABOUT 55 YEARS,
       R/AT DALAVAIKODIHALLI,
       ALAGUR HOBLI, MALAVALLI TALUK,
       MANDYA DISTRICT - 571 430.
                                         ...RESPONDENTS
(BY SRI. M.Y.SREENIVASAN, ADV. FOR R1)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 06.10.2009
PASSED IN R.A.NO.28/2006 ON THE FILE OF THE CIVIL JUDGE
(SR.DN) AND JMFC, MALAVALLI DISMISSING THE APPEAL FILED
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AGAINST THE ORDER DATED 16.03.2004 PASSED IN
MISC.NO.5/1990 ON THE FILE OF THE CIVIL JUDGE (JR.DN),
MALAVALLI, DISMISSING THE PETITION FILED UNDER ORDER
XXI RULE 58 SEEKING TO SET ASIDE THE ATTACHMENT OF
PROPERTY.

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

                       JUDGMENT

Smt. Gowramma, first respondent herein filed a suit

in O.S. No.19/1985 against Shri Sannaiah, the second

respondent herein claiming maintenance. The said suit

was decreed and a charge was created in respect of Sy.

No.76/3 and as there was a default in the payment of

maintenance, Gowramma filed an execution petition in

Ex.P. No.70/1987 for recovery of maintenance and in that

execution proceedings, a sale warrant was issued against

Sy. No.76/3. The appellant herein made an application

under Order XXI Rule 58 of Code of Civil Procedure to lift

the attachment on the ground that the property belongs to

him.

2. The Trial Court on examination of the evidence

adduced before it, recorded a finding that the appellant

was unable to prove that Sy. No.76/3 belonged to his

father or to him. The Trial Court noticed that the revenue

documents produced were relatable to a period after the

institution of the suit and there was no material produced

to indicate as to on what basis the revenue entries were

made out in the name of the appellant. The Trial Court

accordingly rejected the petition filed under Order XXI Rule

58 of CPC.

3. In appeal, the Appellate Court, after re-

appreciation of the entire evidence, concurred with the

finding of the Trial Court. The Appellate Court noticed that

the appellant who had admitted during his examination-in-

chief that the second respondent was his paternal uncle's

son, subsequently, in the cross-examination contended

that he did not know the name of the parents of the

second respondent. The Appellate Court took the view that

the appellant had approached the Court with the sole

intention of protracting the proceedings and that was clear

from the fact that appellant was unaware of his (second

respondent's) grand-father's name. The Appellate Court

also noticed that the documents produced by Gowramma

stated to be of Sy. No.76/3 belong to her father-in-law

who had obtained electricity connection and an irrigation

pump-set. The Appellate Court also found that the RTC

extracts in respect of Sy. No.76/3 for the years 1986-87,

1987-88 and 1988-89 reflected the name of the father-in-

law of Gowramma and therefore it was clear that the

property did not belong to the appellant. The Appellate

Court accordingly dismissed the appeal and confirmed the

finding of the Trial Court.

4. It is against this concurrent finding, the

present appeal has been filed.

5. As noticed above, both the Courts, on

appreciation of the evidence produced before them, have

come to the conclusion that Sy. No.76/3 belongs to the

father-in-law of Gowramma and the documents produced

by the appellant did not indicate that his father was the

owner of Sy. No.76/3 as on the date of institution of the

suit. Both the Courts have held that the name of the

appellant was inserted subsequently and there was no

basis for the said entry.

6. In the light of the concurrent finding of fact

that Sy. No.76/3 did not belong to appellant, there is no

substantial question of law arising for consideration in this

second appeal and accordingly it is dismissed.

Sd/-

JUDGE

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