Karnataka High Court
N. Shiva Prasad vs Mrs. Grace Vincent on 20 December, 2023
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CRP No. 451 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CIVIL REVISION PETITION NO. 451 OF 2023 (IO)
BETWEEN:
N. SHIVA PRASAD,
S/O LATE NANJAPPA,
AGED ABOUT 57 Y EARS,
R/AT NO.415, 6TH 'A' MAIN,
HRBR LAYOUT, 2ND BLOCK,
KALYAN NAGAR,
BANGALORE-560043.
...PETITIONER
(BY SRI. VARADARAJAN M.S., ADVOCATE)
AND:
1. MRS. GRACE VINCENT,
W/O LATE L. VINCENT,
AGED ABOUT 67 YEARS,
PRESENTLY R/AT NO. B-102
JAYAKRUPA BUILDINGS,
HAL III STAGE,
Digitally BANGALORE-560075
signed by
SUMA REPRESENTED BY HER NEXT FRIEND
Location: AND DAUGHTER MS. VINU SAMANTHA,
HIGH
COURT OF D/O LATE L. VINCENT,
KARNATAKA AGED ABOUT 36 YEARS,
R/AT NO. B-102,
JAYAKRUPA BUILDINGS,
HAL III STAGE,
BANGALORE-560075.
2. N.RAJESH
S/O LATE V.K. NAGARAJACHAR,
AGED ABOUT 42 YEARS,
3. SMT. B.R. DHANALAKSHMI
W/O N.RAJESH
AGED ABOUT 39 YEARS,
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CRP No. 451 of 2023
NOS.2 AND 3 R/AT NO.2/15,
1ST MAIN, 4TH BLOCK,
AKASHA NAGAR,
A. NARAYANAPURA,
BANGALORE-560016
4. DISTRICT SUB-REGISTRAR
SHIVAJINAGAR,
BENGALURU-560042.
5. THE COMMISSIONER OF POLICE
BENGALURU CITY,
BENGALURU-560001.
6. POLICE INSPECTOR
INDIRANAGAR POLICE STATION,
BENGALURU-560038
...RESPONDENTS
(BY SRI. VIVEK, ADVOCATE FOR SRI. ABHINAV R., ADVOCATE FOR
CAVEATOR/RESPONDENT NO.1)
THIS CRP IS FILED UNDER SECTION 115 OF CPC., AGAINST
THE ORDER DATED 20.06.2023 PASSED ON IA NO.6 IN OS
NO.5432/2021 ON THE FILE OF XIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY, REJECTING THE IA NO.6 FILED
UNDER ORDER VII RULE 11(d) OF CPC., FOR REJECTION OF PLAINT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner has called in question the correctness of
the order dated 20.06.2023 passed by the XIX Additional City
Civil and Sessions Judge, Bengaluru City, in O.S. No.5432/2021
by which an application (I.A. No.6) filed by him under Order VII
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Rule 11(d) of the Code of Civil Procedure, 1908 (for short,
'C.P.C') was rejected.
2. The petitioner herein was the defendant No.1 while
the respondent No.1 herein was the plaintiff in
O.S.No.5432/2021.
3. The suit in O.S. No.5432/2021 was filed by the
respondent No.1 herein contending that she was the owner of a
property bearing municipal No.98 situate at Ward No.72,
Division No.67 of Civil Station, Domlur II Stage, Bengaluru.
She claimed that the aforesaid property was allotted by the
Bangalore Development Authority (BDA) in favour of Mr.D.
Krishnappa. She claimed that the BDA approved a
construction plan and a conditional deed of sale was executed
on 19.10.1989 in favour of Mr. D. Krishnappa who executed a
general power of attorney dated 26.12.1990 in favour of
Mr.Vincent authorizing him to encumber the suit property and
also executed an agreement of sale in favour of Mr.L.Vincent on
the same day after receiving a sum of Rs.3,00,000/- out of the
total sale consideration of Rs.5,00,000/-. She claimed that Mr.
L. Vincent sold the property in her favour on 01.02.1997. She
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contended that Mr. Vincent was sick and was in dire need of
funds for his treatment. Therefore, he obtained loan from his
friends, namely, Mr.Ananda Kumar and Mr.Mohammad Sharief.
The respondent No.1 claimed that Mr.Ananda Kumar and
Mr.Mohammad Sharief hatched a plot by insisting to execute a
document as security for the hand loan of a sum of
Rs.5,00,000/-. Consequently, a sale deed dated 29.10.1998
was executed by the respondent No.1 where the sale
consideration was shown as Rs.5,00,000/- though the market
value of the property was in several crores. On the same day,
an agreement to reconvey the suit property was executed by
Mr. Ananda Kumar and Mr. Mohammad Sharief in favour of the
respondent No.1. She claimed that a sum of Rs.17,00,000/-
was paid in full and final discharge of the loan and interest and
the last of the payment was made on 17.09.2005. However,
the said Mr.Ananda Kumar and Mr.Mohammad Sharief instead
of re-conveying the suit property, brought about an illegal sale
deed on 17.01.2006 in favour of Mr.Shaik Abdul Hameed, Mrs.
Hajira Khanam, Mr.Abdul Majeed Siddique, Mr.Abdul Waheed
Farooq, Mr.Yaseer Abdul Hamid and Mr.Abdul Azeez Sabir. The
said Mr. Shaikh Abdul Hameed and others sold the property to
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the petitioner who filed O.S.No.8593/2012 against
Mr. N. Shivaprasad, Sri N. Rajesh and Sri. B.R. Dhanalakshmi
for recovery of possession. The said suit was compromised and
in execution of this decree, the respondent No.1 who was not a
party in O.S.No.8593/2012 was dispossessed. The respondent
No.1 therefore sought the following reliefs in the suit:-
a. declare that the judgment in O.S.No.8593/2012
rendered by the Hon'ble Bengaluru has been
obtained by fraud and in collusion with Defendant
Nos.1, 2 & 3 in that case by the Defendants, the
same is not binding on this Plaintiff.
b. declare that the consequential execution
proceedings in E.X.No.1139/2019 rendered by the
Hon'ble X Additional City Civil & Sessions Judge,
CCH - 26, Bengaluru City at Bengaluru has been
obtained by fraud and in collusion with Defendant
Nos.1, 2 & 3 in that case by the Defendant and the
same is not binding on this Plaintiff.
c. declare that the said decree is not binding on the
plaint schedule property.
d. Restore possession of the Plaintiffs possession over
the suit schedule property.
e. Pass an order of permanent injunction restraining
the 1st Defendant either by itself or through its
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agents, Authorised officers, the 2nd Defendant,
being its Receiver and Manager or such other
Receiver and Manager that it may purport to
appoint or any of them, servants, auctioneers,
agents, or advocates or any of them or otherwise
from advertising or offering for sale, or purporting
to sell, or in any other way alienating the Suit
Schedule properties pending the hearing and
determination of this suit.
f. For a Decree of Permanent injunction restraining
the Defendant No.1, his men, agents,
representatives, or any one claiming through or
under them from alienating the Suit Schedule
Property in favour of III parties, pending disposal of
the above suit illegally, unlawfully without the due
process of law pending disposal of this suit.
g. Pass judgment and decree to direct the Defendant
Nos.1 & 2 to release the documents of title
pertaining to the suit schedule property and to issue
necessary No Objection Certificate.
h. Perpetual injunction restraining the Defendants and
each of them and their servants and agents from
transferring alienating, encumbering or disposing of
the suit property or any portion thereto mentioned
in the Schedule hereunder to any third party other
than the plaintiff in any way or manner whatsoever
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i. and declare that the Defendant have no right over
the same and for recovery of plaint schedule
property with mesne profits past and future and
cost of the proceedings and also for return of
articles, movable, books belonged to this Plaintiff
and her family.
j. For costs and such other reliefs as this Hon'ble
Court may deem fit in the facts and circumstances
of the case, in the ends of justice.
4. The defendant No.1/petitioner herein therefore,
filed an application under Order VII Rule 11(d) of CPC
contending that a separate suit is not maintainable in view of
the express bar contained in Order XXI Rule 101 of CPC. This
application was opposed by the plaintiff, who contended that
the relief sought for in the suit was for setting aside the decree
obtained by the defendants in O.S.No.8593/2012 and for
consequential reliefs and to restore the possession of the
plaintiff in respect of the suit schedule property. The plaintiff
claimed that in addition, relief to declare that defendants had a
right over the suit schedule property was also sought for.
5. The Trial Court after considering the contentions,
rejected the application in terms of the impugned order on the
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ground that it was not mandatory for a person other than the
judgment debtor to file an application before the executing
Court itself and that the respondent No.1 was entitled to
choose between two reliefs available to her namely either to go
before the executing Court or file a separate suit.
6. Being aggrieved by the said order, defendant
No.1/petitioner is before this Court.
7. The learned counsel for the petitioner invited the
attention of the Court to Order XXI Rule 99 of CPC which reads
as follows:-
"99. Dispossession by decree-holder or
purchaser.-(1) Where any person other than the
judgment-debtor is dispossessed of immovable
property by the holder of a decree for the possession
of such property or, where such property has been
sold in execution of a decree, by the purchaser
thereof, he may make an application to the Court
complaining of such dispossession.
(2) Where any such application is made, the
Court shall proceed to adjudicate upon the
application in accordance with the provisions herein
contained."
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8. He further contended that there is a specific bar
against filing a separate suit in view of the words, "he may
make an application to the Court complaining of such
dispossession" and "the Court shall proceed to adjudicate upon
the application in accordance with the provisions herein
contained." He also referred to Order XXI Rule 101 of CPC and
contended that all questions arising between the parties to the
proceedings on an application under Rule 97 or Rule 99 of CPC
shall be determined by the Court dealing with the application
and not by a separate suit and for this purpose, the Court shall,
notwithstanding anything contrary contained in any other law
for the time being in force, be deemed to have jurisdiction to
decide such questions.
9. The learned counsel for petitioner contended that
when the respondent No.1 claimed that she was dispossessed
wrongly in execution of a decree passed in O.S.No.8593/2012,
she had to approach the same Court, as all questions have to
be determined by the Court executing the decree under Section
47 of CPC. In support of his contention, the learned counsel for
the petitioner relied upon the judgment of the Hon'ble Apex
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Court in Jini Dhanrajgir and another vs. Shibu Mathew
and another [AIR 2023 SC 2567], where it was held,
"17. Section 47 of the CPC, being one of the
most important provisions relating to execution of
decrees, mandates that the court executing the
decree shall determine all questions arising between
the parties to the suit or their representatives in
relation to the execution, discharge, or satisfaction of
the decree and that such questions may not be
adjudicated in a separate suit. What is intended by
conferring exclusive jurisdiction on the executing
court is to prevent needless and unnecessary
litigation and to achieve speedy disposal of the
questions arising for discussion in relation to the
execution, discharge or satisfaction of the decree.
Should there be any resistance offered or obstruction
raised impeding due execution of a decree made by
a court of competent jurisdiction, the provisions of
Rules 97, 101 and 98 of Order XXI enable the
executing court to adjudicate the inter se claims of
the decree-holder and the third parties in the
execution proceedings themselves to avoid
prolongation of litigation by driving the parties to
institute independent suits. No wonder, the
provisions contained in Rules 97 to 106 of Order XXI
of the CPC under the sub-heading "Resistance to
delivery of possession to decree-holder or purchaser"
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have been held by this Court to be a complete code
in itself in Brahmdeo Chaudhary (AIR 1997 SC 856)
(supra) as well as in a decision of recent origin in
Asgar v. Mohan Verma [(2020) 16 SCC 230]. In the
latter decision, it has been noted that Rules 97 to
103 of Order XXI provide the sole remedy both to
parties to a suit as well as to a stranger to the
decree put to execution.
18. In Bhanwar Lal vs. Satyanarain [(1995) 1
SCC 6], this Court held that when any person,
whether claiming derivative title from the judgment-
debtor or sets up his own right, title or interest de
hors the judgment debtor, the executing court whilst
executing the decree, in addition to the power under
Rule 35(3), is empowered to conduct an enquiry
whether the obstruction by that person is legal or
not.
19. This Court in Noorduddin v. Dr. K.L. Anand
[(1995) 1 SCC 242] reiterated that the executing
court was bound to adjudicate the claim of an
obstructionist and to record a finding allowing or
rejecting the claim which was laid before the
executing court, the person being neither a party to
the earlier proceedings nor the decree being passed
against him.
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20. Yet again, in Babulal v. Raj Kumar & Ors.
[(1996) 3 SCC 154], this Court after setting aside
the order impugned held that a determination is
required to be conducted under Order XXI Rule 98
before removal of the obstruction caused by the
objector and a finding is required to be recorded in
that regard. It was also held that the executing court
was required to determine the question relating to
when the appellants had objected to the execution of
the decree as against those appellants who were not
parties to the decree for specific performance.
21. The decision in Brahmdeo Chaudhary (AIR
1997 SC 856) (supra) cited by Mr. Chitambaresh, is
also to the same effect.
22. Considering the scheme of Order XXI Rules
97 to 106, this Court in Silverline Forum Pvt. Ltd. v.
Rajiv Trust and Anr. [(1998) 3 SCC 723] found it
difficult to agree with the High Court that resistance
or obstruction made by a third party to the decree
put to execution cannot be gone into under Order
XXI Rule 97. Referring to Rules 97 to 106, this Court
further held that they were intended to deal with
every sort of resistance or obstruction raised by any
person and that Rule 97(2) made it incumbent on
the court to adjudicate upon such complaint in
accordance with the procedure laid down. This Court
also proceeded to observe:
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"It is clear that executing court can decide
whether the resistor or obstructer is a person bound
by the decree and he refuses 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. 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".
10. The learned counsel for the respondent No.1 on the
other hand submitted that the respondent No.1 was not a party
to O.S.No.8593/2012 but was wrongly dispossessed while
executing the judgment and decree passed in
O.S.No.8593/2012. He contends that the bar under Order XXI
Rule 101 of CPC is applicable only to the parties to the
proceedings or persons claiming under the parties to the
proceedings and none else. He contends that under Order XXI
Rule 99 of CPC, if any person other than the judgment debtor is
dispossessed from immovable property, then he has an option
of going before the same Court or file a separate suit to recover
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possession, which the respondent No.1 in the present case has
done. He submits that Order XXI Rule 99 of CPC operates in a
different field, while Order XXI Rule 101 of CPC operates in a
different set of circumstance. He contends that while Order XXI
Rule 99 of CPC deals with any person, who is dispossessed by
the holder of decree, Order XXI Rule 101 of CPC deals with the
parties to an execution and their representatives. He therefore,
contends that in the present case, the respondent No.1 was
wrongly dispossessed from the property in question.
Consequently, the respondent No.1 was entitled to either make
an application to the Court complaining of such dispossession
or file a suit before the competent Court to recover the
possession. He relied upon the Full Bench judgment of this
Court in the case of V.K. Rama Setty vs. A. Gopinath [AIR
1998 KAR 186], where this Court was considering the case of
dispossession of a person other than judgment debtor and this
Court held,
"10. We are of the view that keeping in view the
language employed in Order XXI, Rule 99 it is optional
for a person, who is other than judgment debtor and
has been dispossessed, to make an application to the
Court complaining of such dispossession. Under Rule
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99 the use of word "may" gives an option to a person
to file application before the executing Court averring
his grievance. But this rule does not make his remedy
exhaustive thereby debarring him from preferring a
suit for possession completely. It will be for him to
choose either of the two forums. This explains the
observation of the Division Bench. The Division Bench
had not pronounced that even if an aggrieved person
prefers an application under Rule 99, then still he will
have a right to file a separate suit as well. We are
clearly of the opinion that drawing of any such
inference is a misreading of the judgment-of the
Division Bench since such an inference will be in the
death of Rule 101 of Order 21, C.P.C. and therefore
the same cannot be held to be a good law, if at all it
was intended to be so laid down. We do not find it
necessary to record any detailed reasoning of our own
on the said aspect since in our opinion, the issue is
now finally concluded by the judgment of the Supreme
Court in the case of Noorduddin v. Dr. K.L. Anand,
(1995) 1 SCC 242: (1994 AIR SCW 5093)."
11. The learned counsel also relied upon the judgment
of the High Court of Andhra Pradesh in the case of Pavan
Kumar and another vs. K. Gopalakrishna and another
[AIR 1998 AP 247], which too, was a case of dispossession of
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a person other than the judgment debtor where the Court held
as follows:-
"9. The next limb of the argument based on Rule
99 to Rule 101 of Order 21, C.P.C. is that in a situation
contemplated by Order 21, Rule 99, C.P.C., the
procedure laid down therein has to be necessarily
followed and it is not open to the person dispossessed
to file a separate suit in view of the bar contained in
Rule 101. In other words, it is contended by the
learned counsel for the appellants that after the
amendment of Order 21, Rule 101 by the C.P.C.
Amendment Act, 1976, the resort to suit is altogether
barred and the application under Order 21, Rule 99
and the appeal under Rule 103 are the exclusive
remedies available. We find it difficult to accept this
contention. We agree with the learned single Judge
that the bar against filing of a separate suit would
apply only if there was an application under Rule 99
but not otherwise. The third party aggrieved by
dispossession in execution of a decree, may make an
application to the Court complaining such
dispossession. If he makes such an application, all
questions including questions relating to right, title and
possession in the properties shall be decided in that
application as if it were a fullfledged suit for title and
possession and no separate suit would lie for this
purpose. However, an appeal lies under Rule 103 as if
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the order passed on such application is decree. We are
unable to visualise the provisions of Rules 99 to 101
even after amendment as laying down an exhaustive
Code on the remedies of the third parties dispossessed
in execution of a decree for possession. The remedy
under Order 21, Rule 99, C.P.C. is no doubt one of the
remedies available to the person dispossessed. But,
we are unable to construe Order 21, Rule 99 as placing
a bar on bringing an independent suit for possession,
without filing an application under the said Rule. Such
a bar, in our view, does not arise even by necessary
implication.
10. No doubt, there is a qualitative change in the
scope of determination after the amendment of 1976
and it is no longer a summary proceeding to determine
the question of possession but it embraces within its
scope all questions relating to right, title and interest
in the property. But, this change, by itself, does not
deprive the aggrieved person of the resort to ordinary
civil suit. Apart from the expression 'may' employed in
Rule 99 -- which prima facie denotes that the remedy
under Rule 99 is not compulsive, there is one relevant
consideration which weighed with us in coming to the
conclusion that the suit is not intended to be barred.
The limitation prescribed forfiling an application of the
nature contemplated by Order 21, Rule 99 is as short
as 30 days. It is not uncommon that the dispossession
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might often take place in the absence and without the
knowledge of the person in possession. The person in
possession may be residing at a distant place or in a
different country. In such a situation, it is hard to
visualise that the legislative intent was to deny the
remedy on the expiry of 30 days. Whether 30 days'
time has to be computed from the date of knowledge
of dispossession and what is the date of knowledge
would evoke controversies. All these considerations
have impelled us to concur with the view expressed by
the learned single Judge and to hold that the suit is
not barred."
12. In addition, the learned counsel contended that the
respondent No.1 was dispossessed while executing a judgment
and decree to which, she was not a party and therefore, she is
entitled to challenge the said decree, which was illegal by filing
a separate suit. In this regard, he relied upon the judgment of
the Hon'ble Apex Court in the case of Balvant N. Viswamitra
and others vs. Yadav Sadashiv Mule and others [(2004)
8 SCC 706] held,
"15. From the above decisions, it is amply clear
that all irregular or wrong decrees or orders are
not necessarily null and void. An erroneous or illegal
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decision, which is not void, cannot be objected in
execution or collateral proceedings."
13. The learned counsel also relied upon the judgment
of the Hon'ble Apex Court in the case of Vasudev Dhanjibhai
Modi vs. Rajabhai Abdul Rehman and others [1970 (1)
SCC 670], where it was held that,
"9. The High Court was of the view that where
there is lack of inherent jurisdiction in the Court which
passed the decree, the executing Court must refuse to
execute it on the ground that the decree is a nullity.
But, in our judgment, for the purpose of determining
whether the Court which passed the decree had
jurisdiction to try the suit, it is necessary to determine
facts on the decision of which the question depends,
and the objection does not appear on the face of the
record, the executing Court cannot enter upon an
enquiry into those facts. In the view of the High Court
since the land leased was at the date of the lease used
for agricultural purposes and that it so appeared on
investigation of the terms of the lease and other
relevant evidence, it was open to the Court to hold
that the decree was without jurisdiction and on that
account a nullity. The view taken by the High Court, in
our judgment, cannot be sustained."
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14. The learned counsel therefore, contended that the
plaintiff was entitled to either go before the executing Court
complaining of dispossession or file a fresh suit for recovery of
possession and to set aside the decree obtained fraudulently
against the judgment debtor and executing it against the
respondent No.1.
15. I have considered the submissions made by the
learned counsel for defendant No.1 as well as the learned
counsel for the plaintiff.
16. When a person other than the judgment debtor is
dispossessed from an immovable property, such person is
entitled to resist the execution of the decree without loosing
possession in view of the mandate in Section 47 of CPC. This is
also the law declared by the Hon'ble Apex Court in the case of
Silverline Forum Pvt. Ltd. v. Rajiv Trust and Another
[(1998) 3 SCC 723]. In the case on hand, the respondent
No.1 claimed that the petitioner brought about a collusive
compromise decree in O.S.No.8593/2012 and dispossessed the
respondent No.1, who was placed in possession pursuant to the
decree of specific performance granted in O.S.No.25990/2007
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by which, an agreement to reconvey the suit property was
ordered to be enforced. The plaintiff has pleaded various
circumstances indicating how the defendants illegally brought
about a decree in O.S.No.8593/2012 and thereafter,
dispossessed her from the property in question. As rightly
contended by the learned counsel for the respondent No.1, she
was entitled to file an application before the same Court
complaining of dispossession by the decree holder and
alternatively she was entitled to file a suit for recovery of
possession of the property from which she was dispossessed.
The mandate under Order XXI Rule 101 of CPC is applicable
only to the parties to proceedings or their representatives and
not to a person other than the judgment debtor. The purpose of
incorporating such bar is understandable since the persons
claiming through the parties to a proceeding, cannot be left at
large to file separate proceedings as that would result in
multiplicity of proceedings and exposure of the parties to long
drawn litigation. In the case on hand, the respondent No.1
claims that she was dispossessed from the property in question
in execution of a decree for recovery of possession against a
third party, who was not the respondent No.1. Therefore, the
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bar contained under Order XXI Rule 101 of CPC would not apply
to the plaintiff. Consequently, there is no error committed by
the Trial Court in rejecting the application filed by the
defendant No.1, as there is no similar prohibition contained in
Order XXI Rule 99 of CPC but an option is created to the
plaintiff to either file an application before the same Court and
recover the possession or file a separate suit and recover the
possession in accordance with law. The judgment relied upon
by the learned counsel for the petitioner is distinguishable on
facts as in the said judgment, a transferee from the judgment
debtor had filed a suit to recover possession and therefore, the
bar under Order XXI Rule 101 of CPC applied in that case.
17. In view of the above, the petition lacks merit and is
dismissed.
Sd/-
JUDGE
SMA-PARA 1 to 3
PMR- Para 4 to end
