Karnataka High Court
B Narayanaswamy vs C. Sathyanarayana on 3 September, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:35945
RFA No.734 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
REGULAR FIRST APPEAL NO.734 OF 2019 (EX)
BETWEEN:
B. NARAYANASWAMY
S/O CHIKKA BYANNA
AGED ABOUT 59 YEARS
PARTNER OF
Digitally M/S. VINDHYA ENTERPRISES
signed by NO.12, VIJAYA VILAS
MALATESH GELEYARA BALAGA
KC
MAHALAKSHMIPURAM
Location: BENGALURU-560 086.
HIGH
COURT OF ...APPELLANT
KARNATAKA
(BY SRI. RAGHU HULIKAL, ADV.,)
AND:
1. C. SATHYANARAYANA
S/O A.B. CHIKKAMUNIAVALAPPA
AGED ABOUT 58 YEARS
NO.6, 2ND MAIN ROAD
ADUGODI, BENGALURU-560 030.
2. A.B. SURYA
S/O A.M. BALAPPA
AGED ABOUT 74 YEARS
FLAT NO.005, GOLDEN NEST APARTMENTS
ADUGODI, BENGALURU-560 030.
...RESPONDENTS
(BY SRI. M.J. ALVA, ADV., FOR R1
SRI. DR. K.N. VENKATESH, ADV., FOR R2)
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NC: 2024:KHC:35945
RFA No.734 of 2019
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE ORDER DATED 20.12.2018 PASSED ON I.A.NO.II
IN EX.NO.1137/2015 ON THE FILE OF THE X ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING THE
I.A.NO.II FILED UNDER ORDER XXI RULE 97 R/W SEC.151 OF
CPC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri.Raghu Hulikal, learned counsel for the appellant
and Sri.M.J.Alva, learned counsel for the respondent No.1.
2. Third party objector who filed an application under
Order XXI Rule 97 read with Section 151 of the Code of Civil
Procedure, 1908 in Ex. Case No.1137/2015 is the appellant.
3. Facts in brief which are utmost necessary for the
disposal of the present appeal are as under:
To execute the final decree that has been passed in FDP
No.114/2008, an execution petition came to be filed in Ex. Case
No.1137/2015 by the decree holder. Applicant by name
B.Narayanaswamy, claiming to be the representative of M/s.
Vindhya Enterprises, filed an application under Order XXI Rule
97 read with Section 151 of the CPC seeking permission of the
Executing Court to come on record as an objector so as to
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enable him to protect his physical possession over the part of
the decreetal property measuring 950 sq. ft. mentioned and
demarcated in the sketch of the final decree passed in FDP
No.114/2008 on 07.02.2015.
4. Decree holder objected the said application filed by
Narayanaswamy by contending that the applicant has no
independent right over the suit property. It was also
contended that the contentions of the application would go to
show that it is M/s. Vindhya Enterprises which was having some
right and not Narayanaswamy in the individual capacity.
5. In order to substantiate the case of the objector,
objector got examined himself as PW-1 and placed on record 6
documents which were exhibited and marked as Exs.P1 to P6
comprising of certified copy of sale deed dated 19.04.2006,
khata extract, demarcation sketch, rectification deed and two
more sketches.
6. PW-1 was cross-examined at length by the decree
holder. In such cross-examination, there is a categorical
admission made by PW-1 that the possession of the property
has not been handed over to the decree holder who is the
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plaintiff in the original suit. In other words, the answer of PW-
1 in his cross-examination would go to show that the property
of the applicant has fallen to the share of the defendant who is
said to have executed a joint development agreement with M/s.
Salarpuria Properties Pvt. Ltd., who in turn sold the property of
the applicant to M/s. Vindhya Enterprises.
7. Therefore, the learned Trial Judge noted that right
of the applicant, if any, in objecting the decree is imaginary and
illusionary in nature and rejected the application filed under
Order XXI Rule 97 read with Section 151 of the CPC. The said
order is assailed in this appeal.
8. Sri.Raghu Hulikal, learned counsel for the appellant,
reiterating the grounds urged in the appeal memorandum,
contended that order of the learned Judge in the Executing
Court has resulted in affecting the right of the applicant and
therefore, appeal needs to be admitted for further
consideration.
9. Per contra, Sri.M.J.Alva, learned counsel
representing the decree holder contended that in the teeth of
admission made by PW-1 that his property was not allotted to
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the decree holder in the execution proceedings and the
property that has been allotted of the applicant is to the
defendant whose interest has culminated in M/s. Salarpuria
Properties Pvt. Ltd. who in turn sold the property in favour of
M/s. Vindhya Enterprises.
10. Therefore, the remedy for the applicant is to
proceed against the defendant or M/s. Salarpuria Properties
Pvt. Ltd. By executing a decree, when the property of the
applicant has not gone to the share of the decree holder,
further admitting the appeal for further consideration would
only result in futile exercise. Accordingly, appeal is merit less
and following:
ORDER
(i) Admission declined.
(ii) Appeal dismissed.
(iii) No order as to costs.
(iv) Pending applications are consigned to record.
Sd/-
(V SRISHANANDA)
JUDGE
RV
