Karnataka High Court

Mrs. Ramadevi vs Mrs. Vishala D Shetty on 9 January, 2024

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

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                                                         NC: 2024:KHC:989
                                                       RSA No. 16 of 2024




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 9TH DAY OF JANUARY, 2024

                                       BEFORE
                      THE HON'BLE MR JUSTICE M.G.S. KAMAL
                   REGULAR SECOND APPEAL NO. 16 OF 2024 (RES)
              BETWEEN:
                    MRS. RAMADEVI
                    W/O MR K S RAMA RAO,
                    AGED ABOUT 80 YEARS,
                    R/AT DOOR NO.3-120
                    ATHIKARI BETTU, PANJINADKA POST,
                    MULKI, D K DISTRICT - 574 154.

                                                             ...APPELLANT
              (BY SRI. RAVISHANKAR SHASTRY G.,ADVOCATE)

                 AND:
                 1. MRS. VISHALA D. SHETTY
                    W/O LATE P DEVADAS SHETTY,
                    AGED ABOUT 67 YEARS,
Digitally signed    R/AT SOUMYA MALLIKA EXTENSION,
by SUMA B N         KADRI KAMBLA, ROAD BEJAI,
Location: High      MANGALURU D K DISTRICT - 575004.
Court of
Karnataka
                 2. DR SOUMYA SHETTY
                    W/O DR VIJAY SHETTY,
                    D/O LATE P DEVADAS SHETTY,
                    AGED ABOUT 44 YEARS,
                    R/AT C-63, 10TH FLOOR,
                    EECENSES BUILDING,
                    ANTOPHILL, WADALA EAST MUMBAI - 400 037.

              3.    MRS SMITHA HEGDE
                    W/O MR CHANDAN HEGDE,
                               -2-
                                             NC: 2024:KHC:989
                                           RSA No. 16 of 2024




    D/O LATE P DEVADAS SHETTY,
    AGED ABOUT 43 YEARS,
    R/AT FLAT NO.403,
    SSK ENCLAVE, 12TH CROSS,
    22ND MAIN, RAGHAVENDRA LAYOUT,
    NEAR RAVI GAS AGENCY,
    PADMANABHA NAGAR,
    BENGALURU - 560 070.

                                              ...RESPONDENTS
(BY SRI. ANANDARAMA K., ADVOCATE)

      THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 16.12.2023 PASSED IN RA NO.95/2023
ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM,
MANGALURU. D.K, CONFIRMING THE ORDER DATED 18.11.2023 ON
I.A.NO.VI IN EX.C.NO.2/2018 ON PASSED BY THE COURT OF PRINCIPAL
CIVIL JUDGE AND JMFC, MANGALURU.D.K, AND CONSEQUENTLY THE
PETITION FILED BY THE APPELLANT UNDER ORDER XXI RULE 97 OF
EXECUTION     CASE NO.02/2018 MAY BE ALLOWED AS PRAYED BY
ALLOWING THIE APPEAL WITH COSTS THROUGH OUT IN THE INTEREST
OF JUSTICE AND EQUITY.

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

                        JUDGMENT

The appellant is before this Court being aggrieved by

the judgment and Order dated 16.12.2023 passed in

R.A.No.95/2023 on the file of I Additional Senior Civil

Judge and CJM, Mangaluru, Dakshina Kannada (herein

after 'the First Appellate Court') by which the First

Appellate Court confirmed the order dated 18.11.2023

passed in Execution Petition in Ex.C.No.02/2018 on the file

NC: 2024:KHC:989

of Prl. Civil Judge and JMFC, Mangaluru, Dakshina

Kannada(herein after 'Executing Court') which had

dismissed the application filed by the appellant under

Order XXI Rule 97 of the Code of Civil Procedure.

2. The brief facts of the case are that:

2.1 The aforesaid suit in O.S.No.613/2007 was filed by

one Devdas Shetty, one of the vendors in sale deed dated

27.01.1980 contending inter-alia that the defendants in

the said suit being the legal representatives of the

deceased Padmakshi were required to be removed from

the possession of the suit schedule properties. It was the

case of the plaintiff therein that the olamulageni rights in

respect of the said schedule properties were sold by the

plaintiff and his mother in terms of said deed of sale dated

27.01.1980 in favour of one Padmakshi and that non-

payment of rents and death of said Padmakshi has

warranted and resulted in breach of terms of the said

transfer and that a notice of forfeiture was issued and

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accordingly a cause of action had aroused seeking

possession of the property from the defendants.

2.2 The said suit was decreed and an appeal against

the said decree was dismissed, against which a Regular

Second Appeal was before this Court in

R.S.A.No.506/2022. This Court by judgment and Order

dated 21.04.2023 dismissed the said Regular Second

Appeal confirming the judgment and decree passed by the

Trial Court. It is submitted across the bar that the said

Order of this Court was carried by the defendants to the

Apex Court in S.L.P.No.18347/2023 and same has resulted

in dismissal. Thus, the issue with regard to forfeiture of

olamulageni rights by the plaintiff has attained finality.

Execution of the said decree for the purposes of taking

possession of the property was initiated by the plaintiff by

filing execution petition in Execution Petition No.02/2018

on the file of Principal Civil Judge and JMFC, Mangaluru,

Dakshina Kannada. During the pendency of the execution

petition appellant herein filed an application under Order

XXI Rule 97 of CPC claiming that she is the sister of

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deceased Padmakshi and that she is not claiming any right

through or under the judgment debtors and she is claiming

independent rights as such she is required to be heard in

terms of provisions under Order XXI Rule 97 and Order

XXI Rule 101 of CPC. The Trial Court by the impugned

Order dated 18.11.2023 had rejected the said application,

primarily on the ground that an application under Order

XXI Rule 97 of CPC could be maintained only by a decree

holder and not by anyone else. Aggrieved by the said

Order, a Regular Appeal was filed by the appellant in

R.A.No.95/2023 on the file of I Additional Senior Civil

Judge and CJM, Mangaluru, Dakshina Kannada, which

appeal was dismissed by the impugned Order dated

16.12.2023, on the premise that the appellant had failed

to prime-facie establish her possession over the said

property and that requirement of applicant being in the

possession to be the condition precedent for maintaining

the application and since the applicant had not specifically

pleaded with regard to she being in the possession of the

schedule property referring to judgment of this Court

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reported in the case of AKKATAI @ SUJATA VS

BABURAO SATTAPPA ANGOL reported in ILR 1995

KAR 1892 and another judgment of this Court in the case

of Munishamanna and another vs Dhanlakshmi and

others in H.R.R.P.No.110/2012 C/w

H.R.R.P.No.111/2012 and H.R.R.P.No.112/2012,

decided on 05.12.2013. The First Appellate Court

rejected the application. Being aggrieved by the same the

appellant is before this Court.

3. Sri. Ravishankar Shastry, learned counsel for the

appellant reiterating the grounds urged in the

memorandum of the appeal submits that the applicant is

not claiming any right through or under the judgment

debtors. It is his case that deceased Padmakshi who was

granted with olamulageni rights passed away leaving

behind amongst others, the appellant herein as her legal

representative. It is his further case that this right of

olamulageni has devolved upon the appellant upon the

demise of Padmakshi and that without making the

appellant as a party to the aforesaid suit the decree could

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not have been passed. Thus, on the basis of this counsel

for the appellant submits that appellant was entitled to be

heard and her application ought to have been subjected

for enquiry. He submits that the reasons assigned by the

First Appellate Court with regard to possession being the

condition precedent for entertaining the application under

Order XXI Rule 97 of CPC is erroneous. He relies upon the

judgment of the Apex Court in the case of Raghuram Rao

and Others Vs Eric P. Mathias and others reported in

2002 AIR (SC) 797 and submits that for the purpose of

determination of lease under Section 111(g) and 108(j) of

Transfer of Property Act, the legal representatives of the

lessee are necessary parties. Referring to the said

judgment learned counsel for the appellant submits that in

view of the settled position of law laid down by the Apex

Court in the case of determination of permanent leases

without making the legal representatives of the parties,

the Trial Court and the First Appellate Court erred in not

subjecting the matter for enquiry. It is his further

submission that the requirement of being in the possession

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for the purpose of application under Order XXI Rule 97 of

CPC is no more a law as the Apex Court in the case of

Bangalore Development Authority Vs N.Nanjappa

and others decided on 06.12.2021 in Civil Appeal

Nos.6996-6997/2021 has taken a view that all the right,

title, interest in the property arising between the parties

shall be decided and adjudicated in the proceedings under

Order XXI Rule 101 of CPC and not by separate suit. Thus,

he submits that in view of factual and legal aspect of the

matter the Trial Court and the First Appellate Court have

erred giving raise to the substantial question of law. It is

also his case that the First Appellate Court while hearing

the matter on maintainability has proceeded to dispose of

the matter on merits itself without providing sufficient

opportunity to the appellant herein.

4. In response, Sri. Anandarama K, learned counsel for

the respondents submits that the issue with regard to the

right, title and interest of the original grantee namely

Padmakshi has attained finality, even the claim made by

the so called legal representatives of said Padmakshi have

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also been negated in a substantially instituted suit right up

to the Apex Court. He further submits that the appellant

herein who claims to be the sister of deceased Padmakshi

admittedly was never in possession. He further submits

that in the affidavit accompanying the application it is

specifically deposed that when she visited the schedule

property there was a commotion and learnt that there was

an attempt to execute the decree passed to which she was

not a party and that led to she filing an application for

obstruction. Referring to the judgment of this Court in the

case of AKKATAI @ SUJATA VS BABURAO SATTAPPA

ANGOL reported in ILR 1995 KAR 1892 and the

judgment of this Court in the case of Munishamanna and

another vs Dhanlakshmi and others in

H.R.R.P.No.110/2012 C/w H.R.R.P.No.111/2012 and

H.R.R.P.No.112/2012, learned counsel for the

respondent submits that it is settled law that to maintain

an application under Order XXI Rule 97 of CPC applicant

shall prima-facie establish being in possession of the

subject property. He submits that not having complied

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with, the Order passed by the Trial Court and the First

Appellate Court are just and proper and no substantial

question of law would arise for consideration.

5. Heard. Perused the records.

6. There is no dispute of the fact that the judgment and

decree passed in suit filed in O.S.No.613/2007 filed by the

respondent/decree holder has attained finality and

execution of said decree is sought in Ex.P.No.02/2018.

During the pendency of the execution, the appellant has

filed present application. It is necessary to refer to

paragraph No.05 of the application filed in justification of

relief sought under Order XXI Rule 97 of CPC, which reads

as under:

"The Obstruction-petitioner submits that, on 02.09.2023, she had gone to visit her younger sister Smt.Shrimathi Rao who is residing in the house situated in the 'A' schedule property, as the petitioner was informed that, she was not keeping well. When she was inside the house conversing with her sister Smt.Shrimathi Rao, she suddenly heard commotion outside the house. Smt.Shrimathi Rao's son Dr.Aravind, as to what was the commotion about, he informed her that, Late Devadas Shetty had filed a suit against him and his mother seeking their eviction from the 'A'

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schedule property infra, on the ground of determination of tenancy and the court bailiff had come to deliver the premises. He also informed the obstruction-Petitioner that, they had moved the Honourable Supreme Court of India in the matter, but the matter has not been beard by the Apex Court"

7. Apart from the aforesaid paragraph in the

application, no where else has the appellant specifically

contended that she is in actual possession and enjoyment

of the property. Statement of she being in joint possession

of the property as made in para No.4 stands defied by the

very averments made in para No.5 of the said application.

8. Needless to reiterate the law with regard to

requirement of maintaining the application under Order

XXI Rule 97 of CPC. However, for the purpose of ready

reference the law laid down by this Court in the case of

AKKATAI @ SUJATA VS BABURAO SATTAPPA ANGOL

reported in ILR 1995 KAR 1892 at para No.12 is

encapsulated as under:

"12. If the provisions of Order 21 Rules 97 to 101 are read together it would be clear that it is only the obstruction or objection of persons who claim to be in actual possession of the immovable property which can be investigated in the execution proceedings and not the claim of a person who offers to

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obstruct or object to the execution though he is not in possession of the property. If it is to be held that even a person who claims some right in the property independent of the judgment-debtor and who is not a party to the proceedings can make an application offering objection or obstruction to the delivery of possession to the decree holder, even though he is not or does not claim to be in possession of the property, then there would be no end to the travails of a decree holder, The object of these Rules is to protect the interests of persons who are in possession of the immovable property having a right independent of the judgment-debtor against dispossession in execution of a decree which is not binding on them, as well as to enable the decree holder securing possession of the property removing any obstruction that may be offered either by the judgment-debtor or by the persons claiming under him and who are bound by the decree. It must be remembered that these proceedings form part of the proceedings in execution of a decree for possession of immovable property or for possession by a purchaser of an immovable property sold in execution of a decree. Persons who are not in actual possession of the immovable property are not given a right to agitate their rights in proceedings in execution of a decree for possession under the guise of an application offering obstruction or objection to the execution."

Similarly in the case of Munishamanna and another

(supra), this Court at Para Nos.11 and 12 held as under:

"11. Section 47 mandates all questions arising between the parties to the suit or their representatives shall be determined by the Court executing the decree and not by a separate suit. A third party claiming independent right over the property which is the subject matter of execution can object and get his claim adjudicated when he is sought to be dispossessed by a decree holder and he need not wait until he is dispossessed. In other words, the objector has to establish the possession over the property from which he is sought to be dispossessed. He need not wait till he is being dispossessed and then file a separate suit. Any person other than the judgment debtor, who is being evicted by execution proceedings has the right of hearing before the executing Court. All such disputes are to be adjudicated by the Executing Court itself finally under Rule 100 CPC. Thus, possession of the subject property in the hands of the objector is a condition precedent for objecting to the execution proceedings when sought to be dispossessed.

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12. Perusal of Rule 99 of Order XXI would indicate that a person other than judgment debtor when dispossessed of immovable property by the holder of a decree, has to make an application to the Court complaining of such dispossession for being put in possession of such property. Thus, it would clearly indicate that objector has to plead, prove and establish that he was in possession of the property to which he is or was in possession until dispossessed."

9. The reliance placed upon by learned counsel for the

appellant to the judgment of this Apex Court in the case of

Bangalore Development Authority Vs N.Nanjappa

and others is of no avail, in as much as the factual aspect

of the matter as seen at para No.3.2 of the said judgment

would reveal that the BDA had contended having acquired

the land and having taken the possession by the

Engineering Department and it is under those

circumstances, BDA was directed to the impleaded in the

Execution Petition. Paragraph 5.1 relied upon by the

counsel for the appellant would only reflect the reference

to the provisions of Order XXI Rule 101 and Order XXI