Chanabasappa S/O. Ningappa ... vs Hussainbi W/O. Ismail Sab ...
2022 Latest Caselaw 975 Kant

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH AT
                    DHARWAD

        DATED THIS THE 21TH DAY OF JANUARY, 2022

                         BEFORE

 THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM

                    M.S.A.NO.677/2013

BETWEEN :

CHANABASAPPA
S/O NINGAPPA PARAMMANAVAR
AGED- 59 YEARS,
OCC: AGRICULTURE,
R/O. VENKATAPUR,
TALUK & DIST: HAVERI.
                                          ... APPELLANT
(BY     SRI SRINAND A.PACCHAPURE ADV. &
        SMT.PALLAVI S.PACCHAPURE, ADV.)

AND :

1. SMT.HUSSAINBI
  W/O. ISMAILSAB MELLIGATTI
  MUSLIM, AGED 54 YEARS,
  OCC: AGRIL.& HOUSEHOLD,
  R/O. DEVIHOSUR,
  TQ AND DIST: HAVERI-581152.

2. SMT.KHATUMBI
  W/O. KHADARSAB DODDAMANI
  MUSLIM, AGED: 61 YEARS,
  OCC: AGRI. & HOUSEHOLD,
  R/O. NAREGAL,
  TQ & DIST: HAVERI-581165.

3. SMT.IBRAHIMSAB
  S/O. PEERSAB MELLIGATTI,
  MUSLIM, AGED 69 YEARS,
  OCC: TAILORING
  R/O. KANAVALLI,
  TQ & DIST: HAVERI-581172.
                            2




4. ABDULAJEEJ
  S/O PEERSAB MELLIGATTI,
  MUSLIM, AGED: 59 YEARS OCC: AGRI,
  R/O. HAVERI,
  TQ & DIST: HAVERI-581110.

5. AHMEDSAB
  S/O. PEERSAB MELLIGATTI
  MUSLIM, AGED 54 YEARS,
  OCC: AGRICULTURE,
  R/O. HAVERI,
  TQ & DIST: HAVERI-581110.

6. SMT.RAJIYABEGUM
  W/O SULEMAN DODDAMANI.
  MUSLIM, AGED 38 YEARS,
  OCC: HOUSEHOLD WORK,
  R/O. NAREGAL,
  TQ. & DIST: HAVERI-581165.

7. MAQBUL AHMAD,
  S/O. IBRAHIMSAB MELLAGATTI.
  AGED 25 YEARS,
  OCC: AGRICULTURIST,
  R/O VENKATAPUR,
  TQ AND DIST: HAVERI-581110.
                                         ...RESPONDENTS

(NOTICE TO RESPONDENT NOS.1 TO 4 & 6 : SERVED)
(NOTICE TO RESPONDENT NO.5 : HELD SUFFICIENT)
(BY SRI N.P.VIVEKMEHTA ADV. FOR R.7)

      THIS MISCELLANEOUS SECOND APPEAL IS FILED 104
READ WITH SECTION 43 RULE 1(U) OF THE CODE OF CIVIL
PROCEDURE, 1908, PRYING THIS COURT TO SET ASIDE THE
JUDGMENT AND DECREE DATED 14.08.2013 PASSED IN
R.A.NO.39/2011 BY THE DISTRICT JUDGE AT HAVERI BY
RESTORING THE ORDER DATED 24.02.2011 PASSED ON
I.A.NO.5 IN E.P.NO.48/2007 BY THE PRINCIPAL SENIOR CIVIL
JUDGE & C.J.M., HAVERI IN THE INTEREST OF JUSTICE AND
EQUITY.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
                                3




                     : JUDGMENT :

The captioned miscellaneous second appeal is

filed by the decree holder questioning the order of

remand passed by the First Appellate Court in

R.A.No.39/2011.

2. The facts leading to the above said case

are as follows:

The appellant/plaintiff filed suit for specific

performance of contract in O.S.No.52/1994 against

one Ismailsab Peersab Mellagatti. The said suit was

seriously contested by the legal heirs of original

vendor. On contest, the suit filed by the present

appellant herein came to be decreed by judgment and

decree dated 18.01.2007.

3. Being aggrieved by the judgment and

decree passed in O.S.No.52/1994, the legal heirs of

original vendor Ismailsab Peersab Mellagatti, preferred

an appeal in RFA.No.1241/2007 before this Court. This

Court rightly dismissed the appeal. The present

appellant based on decree passed in O.S.No.52/1994,

filed execution petition in E.P.No.48/2007. Respondent

No.7 who is none other than son of respondent

No.3/defendant No.3 filed an application in I.A.No.5

under Order XXI Rule 97 of the Code of Civil

Procedure, 1908 ("CPC" for short) by asserting that

the original vendor namely Ismailsab Peersab

Mellagatti who had executed an agreement to sell in

favour of the present appellant/plaintiff has

bequeathed the land in his favour. The said application

was strongly objected by the appellant herein.

4. The Executing Court having examined the

claim made by respondent No.7 proceeded to reject

the application filed in I.A.No.5 by holding that the

applicant has no right to maintain the application filed

under Order XXI Rule 97 of CPC.

5. Respondent No.7 feeling aggrieved by the

rejection of application preferred an appeal in

R.A.No.39/2011. The Appellate Court quoting Rule

101 of Order XXI of CPC has come to conclusion that

since the applicant is asserting independent right over

the property and is also asserting possession, his

claim has to be dealt and adjudicated in the very

execution proceedings and the same cannot be done

by way of separate suit. The Appellate Court by

following the dictum laid by the Hon'ble Apex Court in

the case of Tanzeem-E-Sufia Vs. Bibi Haliman And

others reported in AIR 2002 SC 3083 has come to

conclusion that the application cannot be rejected

without investigation and once an application is filed,

Rule 101 of CPC contemplates and mandates that

enquiry has to be conducted. On these set of

reasonings, the Appellate Court has proceeded to

allow the appeal and remanded the matter to the

Executing Court and consequently set aside the order

passed by Executing Court on I.A.No.5 directing the

Executing Court to decide the claim of respondent

No.7/obstructor. Against this remand order, the

present appeal is filed by the decree holder.

6. Learned counsel appearing for appellant

would vehemently argue and contend before this

Court that respondent No.7 has no independent right

and is virtually claiming right through the original

vendor on the basis of alleged Will executed by Ismail

Peersab. She would submit to this Court that, the suit

for specific performance of contract filed by the

present appellant was decreed and confirmed by this

Court. It is also stated that in the execution

proceedings, a Court Commissioner was appointed

and sale deed came to be executed on 24.10.2007.

She would place reliance on the judgment rendered by

this Court in the case of Sulochana Ramaray

Vemekar and others Vs. Devappa Bagigeppa

Hudelakoppa and others reported in 2021 (4) AKR

431, would submit to this Court that if obstructor

prima facie does not show that he has got

independent right than that of judgment debtors, then

it is well within the jurisdiction of executing Court to

summarily reject the application rather than treating

the said application as an independent suit and

thereby permit the obstructor to lead evidence. She

would submit to this Court that in the present case on

hand the obstructor is asserting his right on the basis

of a Will which necessarily implies that he is not

claiming any independent right than that of judgment

debtors. Therefore, she would submit to this Court

that the executing Court had rightly summarily

rejected the application. On these set of reasonings,

she would submit to this Court that the order of the

Appellate Court in directing the executing Court to

decide the claim of respondent No.7/obstructor suffers

from perversity and the same is contrary to settled

principles of law relating to right of an obstructor.

7. Per contra, learned counsel appearing for

respondent No.7 would however support the reasons

and conclusions arrived at by the Appellate Court. He

would submit to this Court that once an obstruction

application is filed, Rule 101 of Order XXI of CPC

mandates that there has to be an enquiry. Without

enquiry, the claim of obstructor cannot be out rightly

rejected. In the present case on hand, the Executing

Court has summarily rejected the application and this

precisely has resulted in miscarriage of justice which

has been undone by the First Appellate Court by

setting aside the order of the Executing Court passed

on I.A.No.5.

8. Heard learned counsel appearing for the

appellant and learned counsel appearing for the

respondent No.7. Perused the order under challenge

and also judgments cited by the learned counsel

appearing for the appellant.

9. The short point that would arise for

consideration in the present case on hand is whether

respondent No.7 can seek adjudication of his right by

claiming that the original vendor of appellant/decree

holder has executed a Will in his favour. My answer is

'no'. It is a trite law that when a third party

application is filed, it is incumbent on the part of

Executing Court to find out as to whether the third

party is in possession and is having an independent

right. In catena of judgments, the Hon'ble Apex Court

and this Court have held that Rule 97 of Order XXI of

CPC cannot be converted into a tool in the hands of

highhanded and self seeking person. The scheme of

Order XXI Rule 97 of CPC is to see that bona fide

person is not thrown out by the decree holder.

Therefore, the applicant who has filed an obstruction

application has to prove not only his possession but he

has to establish further that his possession was not

obtained from or under the judgment debtor.

10. If these principles are taken into

consideration then I am of afraid that the claim of

respondent No.7 is tainted with malafides and the

same cannot be looked into and therefore the

executing Court was justified in rejecting the

application out rightly. What is borne out from the

records is that, the appellant/decree holder has

succeeded in the suit and the other respondents/

judgment debtors have suffered decree at the hands

of this Court wherein decree for specific performance

of contract was confirmed by this court. It is also

forthcoming from the records that the decree holder

has secured a sale deed through Court process. The

Courts while deciding the claim of decree holder under

the agreement to sell have recorded categorical

finding that the original vendor parted with possession

and consequently suit filed by the decree holder was

decreed. This also necessarily implies that the finding

on possession recorded by the Courts while deciding

the suit agreement has also attained finality. If these

relevant aspects are taken into consideration, then I

am of the view that respondent No.7 has no

independent right and by setting up a will alleged to

have been executed by the original vendor, an

attempt is made to re-litigate and frustrate the decree

which has attained finality. If the obstruction

application is not supported by any title documents,

which are independent then that of the claim of

judgment debtors, question of holding an enquiry

merely because an obstruction application is filed is

not permissible and that is not the object of Rule 97 of

CPC. In this background, the finding recorded by the

Appellate Court that once an application is filed under

Order XXI Rule 97 of CPC, the consequences have to

follow as per Rule 101 of Order XXI of CPC and there

has to be an enquiry is perverse, palpably erroneous

and in absence of any title documents placed on

record by respondent No.7.

11. Therefore, the remand order passed by the

Appellate Court is not at all sustainable. Hence, I

proceed to pass the following order.

ORDER

i) The miscellaneous second appeal is hereby allowed.

ii) The judgment and decree dated 14.08.2013 passed by the First Appellate Court in R.A.No.39/2011 is hereby set aside.

iii) The order dated 24.02.2011 passed on I.A.No.5 in E.P.No.48/2007 by the Executing Court rejecting the application filed by respondent No.7 is hereby confirmed.

Sd/-

JUDGE EM