Smt. A. Indra Kumari vs Sri. Uday Kumar
2023 Latest Caselaw 4540 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 17TH DAY OF JULY, 2023

                         PRESENT

      THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR

                           AND

          THE HON'BLE MR. JUSTICE C.M. POONACHA

              R.F.A. No.2116 OF 2018 (PAR)

BETWEEN:

SMT. A. INDRA KUMARI
W/O S CAZER IMANUEL
NO.07, JEEVA KRUPA
KURIMANDI ROAD
KESARE, MYSURU-570001
                                          ... APPELLANT

(BY SRI H SUNIL KUMAR, ADVOCATE)

AND

1 . SRI. UDAY KUMAR
    S/O ASHIRVADAM
    SINCE DEAD BY LRs

   1(a)    MRS SUNITA UDAY
           W/O LATE UDAY KUMAR
           AGED ABOUT 62 YEARS
           R/AT NO.47, 2ND FLOOR,
           11TH CROSS, 1ST MAIN
           BM SRINAGAR MATHALLI
           MYSORE 570016.

   1(b)    MRS BABITHA GRACE
           AGED ABOUT 36 YEARS
                              2




          R/AT NO.47, 2ND FLOOR,
          11TH CROSS, 1ST MAIN
          BM SRINAGAR MATHALLI
          MYSORE 570016.

   1(c)   MRs. GILDA RACHEL
          AGED ABOUT 32 YEARS
          W/O Mr. J VIJAY COTTAGE
          NO.46/47, RACHENAHALLI
          SRK NAGAR POST
          BANGALORE 560077.

2 . K G VISHWANATH
    AGED ABOUT 49 YEARS
    S/O LATE JAVARAIAH
    DEVARAJ NILAYA,
    KOTTANAGERI BEI
    HASSAN DISTRICT-573101
                                         ...RESPONDENTS

(BY SRI G KRISHNAMURTHY, SENIOR ADVOCATE FOR
SRI M B RAMACHANDRA, ADVOCATE FOR R2
NOTICE TO R1 (A TO C) IS HELD SUFFICIENT V/O DTD
2.3.2023)

     THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE ORDER DATED 14.09.2018 PASSED IN EX.NO. 66/2011 ON
THE FILE OF THE PRL.SENIOR CIVIL JUDGE AND CJM, MYSURU
DISMISSING THE PETITION FILED UNDER ORDER 21 RULE 97
OF CPC AND ETC.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 18.04.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, POONACHA J., DELIVERED THE
FOLLOWING:
                                 3




                           JUDGMENT

The above first appeal is filed under Section 96 of

the Code of Civil Procedure, 1908 (hereinafter referred to

as the 'CPC') by the Plaintiff - Decree Holder challenging

the order dated 14.9.2018 passed in Execution

No.66/2011 by the Principal Senior Civil Judge and CJM,

Mysuru, (hereinafter referred to as the 'Executing Court'),

whereunder the Executing Court has allowed the

Application filed by the Applicant/Obstructor to the decree

under Order XXI Rule 97 of the CPC.

2. For the sake of convenience, the parties herein

are referred to as per their rank before the Trial Court.

3. The facts in brief necessary for adjudication of

the above appeal are that a suit in OS No.395/2003 was

filed by one Indra Kumari (hereinafter referred to as

Plaintiff/Decree Holder) against her brother Udayakumar

(hereinafter referred to as Defendant/Judgment Debtor)

for partition and separate possession. The suit was

decreed vide judgment and decree dated 12.6.2008

wherein it was held that the Plaintiff and Defendant are

entitled to 50% share each in the suit properties. The

judgment and decree passed by the Trial Court was

challenged by the Defendant in RA.No.215/2008, which

appeal was dismissed. Consequently, the Plaintiff initiated

final decree proceedings in FDP No.23/2008 which was

allowed and the final decree for partition was drawn vide

order dated 24.2.2010. To execute the said decree, the

Plaintiff filed Execution No.66/2011. In the said

proceedings, an application was filed on 19.1.2013 by one

Javanamma under Order XXI Rule 97 of the CPC

obstructing the delivery of the schedule premises to the

Decree Holder and sought for dismissal of the Execution

Petition.

3.1. It is the case of the Obstructor that the suit

property belonged to one Ashirvadam and his wife

Rathnamma who are Christians by religion and were

issueless. That Ashirvadam died intestate on 19.2.1981

leaving behind his wife Rathnamma as his sole legal heir

who inherited the property by way of intestate succession.

That the said Rathnamma expired on 25.4.2001.

3.2. That Rathnamma had no issues and had

fostered the Plaintiff - Indra Kumari and the Defendant -

Udayakumar. That though they were fostered by late

Rathnamma, they did not have any vested right over the

property. That Rathnamma during her life time executed a

Will on 16.3.2001 bequeathing a portion of the property to

the Decree Holder and other portion/s to the Judgment

Debtor and his children. That upon the death of

Rathnamma, the respective persons inherited their

respective portions in terms of the said bequest.

3.3. It is the case of the Obstructor that

Ashirvadam and Rathnamma could not have adopted the

Decree Holder and Judgment Debtor because adoption and

fostering is alien to Christianity and the parties to the suit

could not have inherited the suit property by way of

intestate succession. That by suppressing the facts, the

Decree Holder in collusion with the Judgment Debtor

instituted a suit for partition and separate possession for

her alleged half share in the suit property, wherein the

Decree Holder - Plaintiff claimed that she is the daughter

of deceased Ashirvadam and Rathnamma and the

Judgment Debtor was her brother. That in the said suit,

false pleas of inheritance by way of intestate succession

were made.

3.4. It is the specific case of the Obstructor that

during the pendency of Regular Appeal, the children of the

Defendant - Judgment Debtor, vide registered Sale Deed

dated 26.2.2009 (Document No.15657/2008) sold the

property which was bequeathed to them under the Will

dated 16.3.2001 by Rathnamma to the Obstructor for

valuable consideration and put her in possession and

enjoyment of the property. That she is a bona fide

purchaser for valuble consideration and the very suit

initiated by the Decree Holder is null, void and

illegal. That the father of her vendors

Udayakumar (the Judgment Debtor) colluded with the

Decree Holder and obtained a collusive decree. Hence,

prayed that the decree granted in favour of the Decree

Holder is not binding on the Obstructor as it is null, void

and illegal and sought for dismissal of the Execution

Petition.

4. The Decree Holder filed his objections to the

said IA filed on 19.1.2013 contending, inter alia, that the

Obstructor is claiming through the Judgment Debtor/

Defendant and being a pendente lite purchaser is bound by

the decree and sought for dismissal of the Application.

5. The Trial Court framed 3 issues for

consideration. The Obstructor and Decree Holder adduced

evidence. The Trial Court vide its order dated 14.9.2018

passed the following order:

"The Execution Petition is dismissed with costs.

It is held that the applicants are the absolute owners of the property as per the Sale Deed at Ex.P9."

6. Being aggrieved the present appeal is filed.

7. Sri. Sunil Kumar, learned Counsel for the

Appellant - Decree Holder contended:

i) That the Obstructor being admittedly,

transferee pendente lite, the Application ought to have

been dismissed;

ii) That the Trial Court erred in considering

various factual aspects which tantamounts to going behind

the decree which was impermissible by the Executing

Court;

8. Per contra, Sri G.Krishna Murthy, learned

Senior Counsel appearing for the Obstructor - Respondent

No.2 contended:

i) That the Plaintiff could not have filed the suit

for partition as the property was bequeathed by late

Rathnamma under the Will dated 16.3.2001;

ii) That the Obstructor filed a suit in OS

No.1142/2013 wherein the Decree Holder appeared and

filed an application under Order VII Rule 11 of the CPC

which was allowed and the suit filed by the Obstructor was

dismissed which judgment has been upheld in first appeal.

Hence, the Decree Holder is preventing adjudication of the

rights of the Obstructor either in a separate suit or in the

present execution proceedings.

iii) That the Obstructor having purchased the

property from the legatees under the Will dated 16.3.2001

and the vendors, who were not parties to the suit, she has

an independent right and is entitled to obstruct the decree

which aspect has been rightly appreciated by the Executing

Court and the said order is not liable to be interfered with

in this first appeal.

8.1. In support of his contentions, the learned

Counsel relied upon the following judgments:

          i)      Agsar v. Mohan Kumar1;


    (2020) 16 SCC 230





          ii)     N.S.S.Narayana     Sarma             v.     Goldstone
                  Exports (P) Ltd.,2

          iii)    Nooruddin v. Dr.K.L.Anand3.

9. We have considered the submissions made by

both the learned Counsel for the Appellant and the learned

Senior Counsel for Respondent No.2 and perused the

material on record. The question that arise for

consideration is:

Whether the order of the Executing Court dismissing the Execution Petition is liable to be interfered with?

10. In order to consider the question, it is

necessary to notice the following admitted factual aspects:

i) OS No.395/2003 filed by the Plaintiff - Decree

Holder against the Defendant - Judgment

Debtor was decreed on 12.6.2008 and RA

(2002) 1 SCC 662

(1995) 1 SCC 242

No.215/2008 filed challenging the said

judgment and decree was dismissed;

ii) FDP No.23/2008 was filed to pass a final

decree consequent to the preliminary decree

passed in OS No.395/2003 and by final order

dated 24.2.2010 the share which was required

to be allotted in favour of the Plaintiff was

earmarked;

iii) Execution case No.66/2011 has been filed to

execute the decree passed in OS No.395/2003

in respect of which the final decree has been

drawn in FDP 23/2008;

iv) The Obstructor - Javanamma purchased a

portion of the suit property vide Sale Deed

dated 26.2.2009 (registered as Document

No.15657/2008) from her vendors, Babita

Grace and Gild Rachael, who are the daughters

of the Judgment Debtor who claim to have

inherited the property by virtue of the Will

dated 16.3.2001 (Ex.P5) executed by

Rathnamma.

11. It is relevant to note that in the Will dated

16.3.2001 (Ex.P5) the property described as schedule 'A'

to the Will has been bequeathed in favour of the Judgment

Debtor/Udayakumar, schedule 'B' property has been

bequeathed in favour of the Decree Holder - Indra Kumari

and schedule 'C' and 'D' properties are bequeathed in

favour of Babita Grace and Gild Rachel, respectively who

are the daughters of the Judgment Debtor. The entire suit

property is the subject matter of bequest under the said

Will and portions of the suit property are bequeathed as

noticed herein.

12. The son of the Objector - K.G.Vishwanath had

purchased the schedule 'A' property under the Will - Ex.P5

from the Judgment Debtor - Udayakumar vide registered

Sale Deed dated 26.2.2009 (Document No.15652/2008).

The said K.G.Vishwanath had filed Application dated

7.9.2012 under Order XXI Rule 97 of the CPC objecting to

the execution of the decree. The said Application was

dismissed by the Trial Court vide order dated 12.8.2013.

The Review Petition filed by K.G.Vishwanath to review the

order dated 12.8.2013 was also dismissed.

13. The Objector - Javanamma who was the

purchaser of the property from the daughters of the

Judgment Debtor vide registered Sale Deed dated

26.2.2009 (Document No.15657/2008) filed Application

dated 19.1.2013 under Order XXI Rule 97 of the CPC. The

said Application was opposed by the Plaintiff - Decree

Holder. The Executing Court, vide order dated 12.8.2013

dismissed the Application filed by Javanamma, who then

filed IA dated 19.8.2013 under Order XLVII Rule 1 of the

CPC to review the order dated 12.8.2013. The Executing

Court, vide its order dated 27.11.2013 allowed the

Application filed by Javanamma and passed the following:

"The application filed by the applicant Smt. Javanamma, under Order 47 Rule 1 of C.P.C., is allowed. Accordingly, the orders dated 12.08.2013, in so far as the present applicant Smt. Javanamma is concerned, is set aside and the applicant Smt. Javanamma, is permitted to lead

enquiry in respect of the application filed by her under Order 21 Rule 97 of C.P.C. However, no orders as to cost."

14. Subsequently, Javanamma died and her son

K.G.Vishvanath (Respondent No.2 in the present Appeal)

was permitted to come on record as the legal

representative of Javanamma pursuant to the order dated

21.1.2017 passed by the Executing Court. Consequently,

Respondent No.2 is prosecuting the Application filed by

Javanamma as Obstructor as her legal representative.

15. In the enquiry, K.G.Vishwanath examined

himself as PW.1 and examined PW.2, an acquaintance to

the family of Ashirwadam; PW.3, a Real Estate Agent;

PW.4, a witness to the Will (Ex.P5) and PW.5, an Advocate

who drafted the said Will (Ex.P5). Exs.P1 to P18 were

marked in evidence. The Decree Holder examined herself

as RW.1 and her husband as RW.2. Exs.R1 to R21 were

marked in evidence.

16. The Executing Court while adjudicating the said

IA, framed the following issues:

"1. Whether the applicant/obstructors prove that they have independent right over the property in dispute?

2. Whether the applicant/obstructors further prove that the decree dated 24.02.2010 in O.S. 395/2003 and the final decree passed as per Order dated 24.02.2010 in FDP 23/08 cannot be executed against them?

3. What Order?"

17. The Executing Court, after considering the case

putforth by the Obstructor, recorded a finding that the

Obstructor had proved execution of the Will and allowed

the Application.

18. It is forthcoming from the judgment and

decree dated 12.6.2008 passed in OS No.395/2003

(Ex.P3) that the Judgment Debtor had pleaded regarding

execution of the Will and had also adduced his

examination-in-chief. The said Will was marked as Ex.D1 in

the suit. However, he did not appear for further

examination-in-chief and subsequently, the Defendant

remained absent and did not submit himself for cross-

examination. It is forthcoming from the memorandum of

appeal filed by the Defendant in RA No.215/2008 (Ex.P12)

that specific grounds have been urged by the Defendant

with regard to the Will - Ex.D1 executed by Rathnamma.

However, RA No.215/2008 was filed along with IA.No.1 for

condonation of 140 days delay and the Defendant having

adduced evidence on IA.No.I, the first Appellate Court vide

its order dated 17.8.2009 dismissed IA.No.1 and

consequently, dismissed RA No.215/2008.

19. It is forthcoming from the registered Sale Deed

dated 26.2.2009 (Document No.15657/2008) executed by

Babita Grace and Ms. Gild Rachael, the daughters of the

Judgment Debtor in favour of the Obstructor - Javanamma

that the Judgment Debtor had also signed as a witness to

the said Sale Deed. Hence, during the pendency of RA

No.215/2008 the Obstructor had purchased the property.

20. Having regard to the aforementioned factual

position it is necessary to notice the relevant statutory

provisions and the settled proposition of law.

21. Rules 97 to 102 of Order XXI of the CPC

stipulate as under:

" 97. Resistance or obstruction to possession of immovable property.-

(1)Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate the upon the application in accordance with the provisions herein contained.

98. Orders after adjudication.-

(1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),-

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or

(b) pass such other order as, in the circumstances of the case, it may deem fit.

(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his

instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.

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.

100. Order to be passed upon application complaining of dispossession.-

Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,-

(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application ; or

(b) pass such other order as, in the circumstances of the case, it may decree fit.

101. Question to be determined

All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, 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 to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.

102. Rules not applicable to transferee pendent lite"

Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person.

Explanation.-In this rule, "transfer" includes a transfer by operation of law."

22. The Hon'ble Supreme Court in the case of

Silverline Forum Pvt. Ltd., v. Rajiv Trust4 has held as

follows:

"10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under Rule 97 or Rule 99" shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the

(1998) 3 SCC 723

resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment-debtor, the scope of the adjudication would be shrunk to the limited question whether he is such a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of the Transfer of Property Act. "

(emphasis supplied)

23. The Hon'ble Supreme Court in the case of

Usha Sinha v. Dina Ram5 has held as follows:

"21. We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum [(1998) 3 SCC 723] . In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment- debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment-debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated.

22. For invoking Rule 102, it is enough for the decree-holder to show that the person resisting the possession or offering obstruction is claiming his title to the property after the institution of the suit in which decree was passed and sought to be

AIR 2008 SC 1997

executed against the judgment-debtor. If the said condition is fulfilled, the case falls within the mischief of Rule 102 and such applicant cannot place reliance either on Rule 98 or Rule 100 of Order 21."

(emphasis supplied)

24. In the case Agsar1 relied on by the learned

Senior Counsel for second Respondent, the Hon'ble

Supreme Court has held as under:

"43. Under Order 21 Rule 101, all questions including questions relating to right, title or interest in the property arising between parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives shall be determined by the court and not by a separate suit. In Shreenath v. Rajesh [Shreenath v. Rajesh, (1998) 4 SCC 543] , A.P. Misra, J. speaking for a two-Judge Bench of this Court, while interpreting the expression "any person" in Rule 97, held thus : (SCC p. 549, para 10)

"10. ... We find the expression "any person" under sub-clause (1) is used deliberately for widening the scope of power so that the executing court could adjudicate the claim made in any such application under Order 21 Rule 97. Thus by the use of the words "any person" it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger."

"46. In view of the settled position in law, as it emerges from the above decisions, it is evident that

the appellants were entitled, though they were strangers to the decree, to get their claim to remain in possession of the property independent of the decree, adjudicated in the course of the execution proceedings. The appellants in fact set up such a claim. They sought a declaration of their entitlement to remain in possession in the character of lessees. Under Order 21 Rule 97, they were entitled to set up an independent claim even prior to their dispossession. Under Order 21 Rule 101, all questions have to be adjudicated upon by the court dealing with the application and not by a separate suit. Upon the determination of the questions referred to in Rule 101, Order 21 Rule 98 empowers the court to issue necessary orders. The consequence of the adjudication is a decree under Rule 103."

(emphasis supplied)

25. In the case of N.S.S.Narayana Sarma2 relied

on by the learned Senior Counsel for second Respondent,

the Hon'ble Supreme Court has held as under:

"15. Provision is made in the Civil Procedure Code for delivery of possession of immovable property in execution of a decree and matters relating thereto. In Order 21 Rule 35 provisions are made empowering the executing court to deliver possession of the property to the decree-holder if necessary, by removing any person bound by the decree who refuses to vacate the property. In Rule 36 provision is made for delivery of formal or symbolical possession of the property in occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy. Rules 97 to 101 of Order 21 contain the provisions enabling the executing court to deal with a situation when a decree-holder entitled to possession of the property encounters obstruction from "any person". From the provisions

in these Rules which have been quoted earlier the scheme is clear that the legislature has vested wide powers in the executing court to deal with "all issues" relating to such matters. ................., particularly, the provision in Rule 101 in which it is categorically declared that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application 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 to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. On a fair reading of the Rule it is manifest that the legislature has enacted the provision with a view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the decree-holder or any other person in possession of the immovable property under execution and has vested the power in the executing court to deal with all questions arising in the matter irrespective of whether the court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the courts seized of an execution proceeding. The court cannot shirk its responsibility by skirting the relevant issues arising in the case."

(emphasis supplied)

26. In the case of Nooruddin3 relied on by the

learned Senior Counsel for second Respondent, the Hon'ble

Supreme Court has held as under:

"8. Thus, the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree- holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution.

9. ........... Right to the right, title or interest of a party in the immovable property is a substantive right. But the right to an adjudication of the dispute in that behalf is a procedural right to which no one has a vested right. ........................ Adjudication under Order 21, Rules 98, 100 and 101 and its successive rules is sine qua non to a finality of the adjudication of the right, title or interest in the immovable property under execution."

(emphasis supplied)

27. In the case of Silverline Forum Pvt. Ltd.,4

and Usha Sinha5 the Hon'ble Supreme Court was

considering a case where the Obstructor was claiming

through the Judgment Debtor and was hence bound by the

decree. Whereas in the case of Agsar1, N.S.S.Narayana

Sarma2 and Nooruddin3 the Hon'ble Supreme Court was

considering cases where the Obstructor was asserting an

independent right in respect of the properties which were

subject matter of execution proceedings.

28. Having regard to the settled proposition of law

as noticed above, in the event the Objector is claiming

through the Judgment Debtor, the application is liable to

be rejected, whereas in the event the Objector is claiming

an independent right dehors the Judgment Debtor, such an

application will be required to be enquired into by the

Executing Court so as to adjudicate upon the nature of

right sought to be asserted.

29. The second Respondent - K.G.Vishwanath was

asserting right in respect of a portion of the suit property

by virtue of the Sale Deed dated 26.2.2009 (Document

No.15652/2008) which was executed by the Judgment

Debtor - Udayakumar. The application dated 7.9.2012

filed by K.G.Vishwanath has rightly been rejected by the

Executing Court. However vide the IA dated 19.1.2013

filed by Javanamma, she claimed right, title and interest in

a portion of the suit property having acquired the same

vide registered Sale Deed dated 26.2.2009 (Document

No.15659/2008-09) from her vendors Ms.Babita Grace and

Ms. Gild Rachael. Having regard to the admitted position

that the said vendors were not parties to the suit,

notwithstanding the fact that they are the daughters of the

Judgment Debtor - Udayakumar, having regard to the fact

that they are asserting right in respect of a portion of the

suit property by virtue of the bequest made under the Will

dated 16.3.2001 (Ex.P5), the said aspect has been rightly

dealt with by the Executing Court and the IA dated

19.1.2013 filed by Javanamma was required to be

enquired into.

30. It is important to note that Javanmmma is

asserting right only in respect of a portion of the suit

property and second Respondent - K.G.Vishwanath is a

party to the present proceedings only as the legal

representative of Javanamma. K.G.Vishwanath is not

entitled to assert any right in his individual capacity as

being the purchaser from the Judgment Debtor -

Udayakumar by virtue of the Sale Deed dated 26.2.2009

(Document No.15652/2008) and he is bound by the decree

sought to be executed.

31. The enquiry by the Executing Court was

required to be conducted on the IA dated 19.1.2013 filed

by Javanamma in so far as the portion of the property

conveyed vide Sale Deed dated 26.2.2009 (Document

No.15657/2008-09) in favour of Javanamma. In the said

enquiry, the Obstructor was required to prove due

execution of the Will dated 16.3.2001 (Ex.P5) executed by

Rathnamma. Hence, the Executing Court erred in

dismissing the Execution Petition.

32. The decree was required to be executed in

respect of the suit property except the portion of the

property claimed by the Obstructor - Javanamma. The

Executing Court was required to adjudicate the claim made

by the Obstructor - Javanamma and only if the Obstructor

had proved due execution of the Will dated 16.3.2001

(Ex.P5), would she be entitled to claim right, title and

interest in the property purchased by her.

33. It is forthcoming from the order dated

14.9.2008 passed by the Executing Court that the

evidence adduced by the witness and scribe of the Will

(Ex.P5) PW.4 and PW.5 has not been appreciated. The

relevant aspects of the cross-examination of the said

witnesses have also not been noticed. Having regard to

the same, prima facie the finding recorded by the

Executing Court holding that the Applicant is an absolute

owner by virtue of the Sale Deed - Ex.P9 is erroneous and

liable to be set aside.

34. In view of the aforementioned, the order

passed by the Executing Court is required to be set aside

and the matter is required to be remanded to the

Executing Court to enable it to frame a suitable issue with

regard to proof of due execution of the Will dated

16.3.2001 and appreciate the relevant material on record

and pass suitable orders on the IA dated 19.1.2013 filed

by Javanamma.

35. It is made clear that the Obstructor -

K.G.Vishwanath claiming by virtue of the Sale Deed dated

26.2.2009 (Document No.15652/2008) executed by

Judgment Debtor - Udayakumar will not be entitled to

obstruct the execution of the decree. Obstruction to the

decree vis-à-vis a portion of the suit property is required

to be adjudicated only in respect of the right claimed vide

IA dated 19.1.2013 filed by Javanamma by virtue of the

right acquired by her, if any, vide Sale Deed dated

26.2.2009 (Document No.15657/2008-09). It is only if the

Will dated 16.3.2001 is adequately proved, appropriate

orders are required to be passed on the Application dated

19.1.2013 filed by Javanamma. Hence the question

framed for consideration is answered in the affirmative.

36. IA.I/2020 is filed by the Appellant - Applicant

to direct the Respondents to maintain status quo of the

plaint schedule property. The Applicant has specifically

pleaded in the affidavit filed along with the application that

the Respondents are demolishing the building and

transporting the building materials. Photographs have

been annexed along with the application in support of the

same. Having regard to the averments made in the

affidavit accompanying the application and in view of the

apprehension expressed by the Appellant, the Respondents

are required to be directed to maintain status quo of the

property in their possession till disposal of the enquiry by

the Executing Court.

37. IA.2/2020 is filed by the Appellant - Applicant

for stay of the order dated 14.9.2018. In view of the said

impugned order dated 14.9.2018 being set aside,

IA.2/2020 is required to be disposed of as unnecessary.

38. IA.3/2020 is filed by the Appellant - Applicant

under Order XLI Rule 27 of the CPC to permit the Applicant

to produce the property valuation reports pertaining to the

suit property. In view of the fact that the matter has been

remanded to the Executing Court, IA.3/2020 is required to

be rejected reserving liberty to the Applicant to produce

the document annexed along with the said IA before the

Executing Court, if necessary.

39. In view of the aforementioned, we pass the

following:

ORDER

i. The above appeal is allowed;

ii. The order dated 14.9.2008 passed on IA in Execution

No.66/2011 by the Principal Senior Civil Judge and

CJM, Mysuru, is set aside;

iii. The matter is remanded to the Executing Court to

proceed further in accordance with law keeping in

mind the observations made above;

iv. The parties shall appear before the Executing Court

on 7.8.2023 without the requirement of issuing any

fresh notice in this regard;

v. Since the Execution case is pending for more than a

decade, the Executing Court shall endeavour to

expeditiously dispose of the same, in any event, not

later than one year from the date of appearance of

the parties subject to parties fully cooperating in the

proceedings.

vi. It shall be open to the Executing Court to permit the

parties to file additional pleadings and/or lead any

further evidence on such terms that it may deem fit,

if such a request is made;

vii. IA.No.1/2020 filed by the Appellant is allowed and

the Respondents are directed to maintain status quo

with regard to alienation and possession of the

property in their possession, till the disposal of

enquiry by the Executing Court;

viii. IA.No.2/2020 for stay is dismissed as unnecessary;

ix. IA.No.3/2020 is rejected reserving liberty to the

Appellant to produce the documents before the

Executing Court, if necessary;

x. All contentions of the parties are left open.

No costs.

Sd/-

JUDGE

Sd/-

JUDGE

nd