Karnataka High Court
Begum Fauzia Banu vs Smt. Zubeda on 4 December, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
NC: 2023:KHC:43819
RFA No. 653 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO.653 OF 2016 (RES)
BETWEEN:
1. BEGUM FAUZIA BANU
W/O. JANAB GHOUSE KHAN,
AGED ABOUT 60 YEARS,
R/AT DOOR NO.178, M.G. BLOCK,
AL KAREEM ROAD,
SHANTHINAGAR,
MYSORE-570 007.
2. BEGUM KHUDISA BANU
W/O. LATE JANAB M AZEEZ SAB,
AGED ABOUT 58 YEARS,
R/AT DOOR NO.251, 8TH CROSS,
MAHADEV PURA ROAD,
SHANTHINAGAR,
MYSORE-570 007.
3. BEGUM ANJUMAN BANU
Digitally
signed by W/O. LATE JANAB ABDUL RASHID,
VANDANA S AGED ABOUT 61 YEARS,
Location: R/AT DOOR NO.125, 7TH CROSS,
HIGH MAHADEV PURA ROAD,
COURT OF SHANTHINAGAR,
KARNATAKA MYSORE-570 007.
4. BEGUM WAJEEHA BANU
W/O. MOHAMMED PEER,
AGED ABOUT 48 YEARS,
D. NO. 2111, TURAB ALI STREET,
MANDI MOHALLA,
MYSORE-570 007.
...APPELLANTS
(BY SRI. SHOWRI H R AND
SRI. AKSHAY D.B., ADVOCATES)
-2-
NC: 2023:KHC:43819
RFA No. 653 of 2016
AND:
1. SMT. ZUBEDA
W/O. LATE ABDHUL RAHEEM,
AGED ABOUT 52 YEARS.
2. ABDUL RAMEEZ
S/O. LATE ABDHUL RAHEEM,
AGED ABOUT 26 YEARS,
3. HAJIRA
D/O. LATE ABDHUL RAHEEM,
AGED ABOUT 24 YEARS,
4. ABDUL RAWOOF
S/O. LATE ABDHUL RAHEEM,
AGED ABOUT 22 YEARS,
5. MOHAMMED SHAFI
S/O. LATE ABDHUL RAHEEM,
AGED ABOUT 18 YEARS,
ALL ARE RESIDENTS AT NO.2044/A,
NEW NO.8/11, TURAB ALI STREET,
MANDI MOHALLA,
MYSORE-570 007.
6. SMT. SAHIDA BANU
D/O. LATE ABDUL SAMAD,
AGED ABOUT 58 YEARS,
7. NAJEEB UR-REHMAN
S/O. LATE ABDUL SAMAD,
AGED ABOUT 53 YEARS,
BOTH ARE RESIDENTS OF NO.2601,
M.K.D.K. ROAD, MANDI MOHALLA,
MYSORE-570 007.
...RESPONDENTS
(BY SRI. S A MARUTHI PRASAD, ADVOCATE FOR R-1 TO R-5;
SRI. V.R. BALARAJ, ADVOCATE FOR R-6 & R-7)
-3-
NC: 2023:KHC:43819
RFA No. 653 of 2016
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF
CPC AGAINST THE ORDER DATED 06.06.2015 PASSED ON I.A
NOS.1 TO 4 IN EX.NO.353/2012 ON THE FILE OF THE II ADDL. SR.
CIVIL JUDGE AND CJM, MYSORE, REJECTING THE IA NO.1 TO 4
FILED U/O 21 RULE 97 OF CPC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal arises out of the impugned order dated
06.06.2015 passed in execution proceedings in Ex.No.353/2012 on
the file of the II Addl. Senior Civil Judge & CJM, Mysuru, whereby
the Trial Court dismissed the applications - I.A.Nos.1 to 4 filed by
the appellants under Order 21 Rule 97 CPC.
2. Heard learned counsel for the appellants and learned
counsel for the respondents and perused the material on record.
3. The material on record discloses that the appellants
are none other than the sisters of one Abdul Samad, who said to
have expired prior to 22.01.2007 leaving behind respondent Nos.6
and 7 to succeed to his estate including the suit schedule
properties. Respondent Nos.6 and 7, children of the aforesaid
Abdul Samad (brother of the appellants) executed a Sale
Agreement dated 22.01.2007 in favour of respondent Nos.1 to 5
herein for a total sale consideration of Rs.11,25,000/- and received
NC: 2023:KHC:43819
a sum of Rs.5 lakhs by way of advance and as part of sale
consideration. Subsequently, since respondent Nos.6 and 7
refused to perform their part of the contract and did not execute the
registered Sale Deed in favour of respondent Nos.1 to 5,
respondent Nos.1 to 5 instituted a suit in O.S.No.1702/2007 for
specific performance of Sale Agreement dated 22.01.2007 and for
other reliefs against respondent Nos.6 and 7.
4. The said suit after contest was decreed in favour of
respondent Nos.1 to 5 and against respondent Nos.6 and 7, who
were directed to execute a registered Sale Deed in favour of
respondent Nos.1 to 5 after receiving balance sale consideration.
Aggrieved by the said impugned judgment and decree dated
14.07.2010 passed in O.S.No.1702/2007, respondent Nos.6 and 7
preferred an appeal in RFA No.1900/2010 before this Court. By
judgment and decree dated 23.05.2012, this Court dismissed the
aforesaid RFA No.1900/2010 thereby confirming the judgment and
decree passed by the Trial Court. The said judgment and decree
passed by the Trial Court in O.S.No.1702/2007 which was
confirmed by this Court in RFA No.1900/2010 has attained finality
NC: 2023:KHC:43819
and become conclusive and binding upon respondent Nos.6 and 7,
who did not prefer a further appeal before the Apex Court.
5. Subsequently, on 29.06.2012, respondent Nos.1 to 5
instituted the execution proceedings in Ex.No.353/2012 to execute
and implement the aforesaid judgment and decree. In the said
execution proceedings, the appellants herein filed the instant
applications - I.A.Nos.1 to 4 under Order 21 Rule 97 CPC interalia
contending that they were the sisters of the aforesaid Abdul Samad
and had independent right, title, interest and possession over the
suit schedule properties and were entitled to contest the execution
proceedings as obstructors / objectors. The said applications -
I.A.Nos.1 to 4 having been opposed by respondent Nos.1 to 5
herein, the Trial Court proceeded to pass the impugned order
rejecting the said applications, aggrieved by which, the appellants
are before this Court by way of the present appeal.
6. In this context, it is relevant to state that meanwhile, on
28.09.2010, the appellants had instituted one more suit in
O.S.No.599/2010 for partition and separate possession of their
alleged share in the suit schedule properties interalia contending
that after the demise of the said Abdul Samad, the appellants are
NC: 2023:KHC:43819
also entitled to share in the suit schedule properties along with
respondent Nos.6 and 7. However, the said suit in
O.S.No.599/2010 filed by the appellants having been dismissed for
non-prosecution on 13.04.2012, the Executing Court in
Ex.No.353/2012 registered the Sale Deed in favour of respondent
Nos.1 to 5 on 21.04.2016, pursuant to which the respondent Nos.1
to 5 have instituted one more execution proceedings in
Ex.No.270/2016 against respondent Nos.6 and 7, which is also
pending adjudication.
7. Heard learned counsel for the petitioner and learned
counsel for the respondent and perused the material on record.
8. In addition to reiterating the various contentions urged
in the Memorandum of Appeal and referring to the material on
record, learned counsel for the appellants submits that the Trial
Court committed an error in rejecting the applications - I.A.Nos.1 to
4 filed by the appellants. In this context, it is submitted that the
Trial Court failed to consider and appreciate the material on record,
which indicates that the appellants had succeeded to the suit
schedule properties as tenants-in-common along with respondent
Nos.6 and 7 upon the demise of Abdul Samad and consequently,
NC: 2023:KHC:43819
they possessed independent right over the suit schedule properties
which enabled them to obstruct / object to the execution
proceedings. It was therefore submitted that the Trial Court
committed an error in dismissing the applications - I.A.Nos.1 to 4
warranting interference by this Court in the present appeal.
9. Per contra, learned counsel for respondent Nos.1 to 5
would support the impugned order passed by the Trial Court and
submits that the Executing Court has correctly and properly
considered and appreciated the entire material on record and
proceeded to reject the applications by coming to the conclusion
that the appellants, who were merely sisters of late Abdul Samad
did not possess independent right, title, interest or possession over
the suit schedule properties. It is also submitted that the suit in
O.S.No.599/2010 filed by the appellants seeking partition against
respondent Nos.6 and 7 had been dismissed for non-prosecution
on 13.04.2012 and in the light of the provisions contained in Order
9 Rule 9 CPC and Order 21 Rule 104 CPC, the Executing Court
was fully justified in passing the impugned order dismissing the
applications, which does not warrant interference by this Court in
the present appeal, which is liable to be dismissed.
NC: 2023:KHC:43819
10. I have given my anxious consideration to the rival
submissions.
11. The following points arise for consideration in the
present appeal:
(i) Whether the Executing Court erred in
rejecting the applications - I.A.Nos.1 to 4 filed by the
appellants?
(ii) Whether the impugned order passed by the
Trial Court warrants interference?
12. Both points are interlinked and are taken up together
for consideration.
13. A perusal of the material on record will indicate that the
sole ground on which the appellants claim right over the suit
schedule properties was that they were sisters of Abdul Samad
upon whose demise, the appellants became entitled to share in the
suit schedule properties along with respondent Nos.6 and 7, the
children of Abdul Samad. However, the Trial Court noticed that the
suit in O.S.No.599/2010 filed by the appellants against respondent
Nos.6 and 7 had been dismissed for non-prosecution in which they
had sought for partition and separate possession of their alleged
NC: 2023:KHC:43819
share in the suit schedule properties upon demise of Abdul Samad.
In this context, it is relevant to extract Order 21 Rule 104 CPC,
which reads as under:
"104. Order under Rule 101 or rule 103 to be subject to
the result of pending suit
Every order made under rule 101 or rule 103 shall be
subject to the result of any suit that may be pending on the date of
commencement of the proceedings in which such order is made, if
in such suit the party against whom the order under rule 101 or
rule 103 is made has sought to establish a right which he claims to
the present possession of the property"
14. A perusal of the aforesaid provision will clearly indicate
that any order passed in proceedings under Order 21 Rule 97
would be subject to the result of pending suit. In the instant case, it
is an undisputed fact that prior to the impugned order being passed
on 06.06.2015, the suit in O.S.No.599/2010 had already been
dismissed for non-prosecution on 13.04.2012 and by virtue of
Order 21 Rule 104 CPC, the impugned order passed under Order
21 Rule 103 CPC would be subject to the dismissal of
O.S.No.599/2010. In other words, upon dismissal of the suit for
partition in O.S.No.599/2010 filed by the appellants, the instant
applications - I.A.Nos.1 to 4 being subject to the said order of
dismissal would also be liable to be dismissed. Under these
- 10 -
NC: 2023:KHC:43819
circumstances, I am of the view that the Trial Court was fully
justified in rejecting the applications - I.A.Nos.1 to 4 filed by the
appellants.
15. A perusal of the material on record will also
undisputedly indicate that the aforesaid suit in O.S.No.599/2010
filed for partition was dismissed for non-prosecution on 13.04.2012;
it is needless to state that if a suit is dismissed for non-prosecution
under Order 9 Rule 8 CPC, the only remedy available to the
appellants - plaintiffs was to file an application seeking restoration
of the suit under Order 9 Rule 9 CPC within the prescribed period
and the same having undisputedly not been done by the appellants
- plaintiffs, the present applications which are in the nature of a suit
and since the order to be passed would be in the nature of a
decree under Order 21 Rule 103 CPC, the applications would be
clearly barred under the principles underlying under Order 9 Rule 9
CPC. Viewed from this angle also, I am of the view that the
applications filed by the appellants were not maintainable and the
same is liable to the dismissed.
16. It is also relevant to state that the instant execution
proceedings were filed only for the limited purpose of obtaining
- 11 -
NC: 2023:KHC:43819
registered Sale Deed from respondent Nos.6 and 7 and no prayer
for recovery of possession was sought for in the instant
Ex.No.353/2012 by the decree holders. Under these circumstances
also, in the absence of any prayer for recovery of possession,
applications filed by appellants under Order 21 Rule 97 CPC were
not maintainable and on this ground also, the Trial Court was fully
justified in rejecting the applications filed by the appellants.
17. Upon re-appreciation, reconsideration and re-
evaluation of the entire material on record, I am of the considered
opinion that the impugned order passed by the Trial Court cannot
be said to suffer from any illegality or infirmity nor can the same be
said to be capricious or perverse warranting interference by this
Court in the present appeal and hence, I do not find any merit in
the appeal and the same is accordingly dismissed.
18. It is needless to state that upon dismissal of the
appeal, all interim order shall automatically stands dissolved.
Sd/-
JUDGE
