Karnataka High Court
Sri T M Umapathaiah vs K B Ramalingappa on 3 March, 2025
Author: K.Somashekar
Bench: K.Somashekar
-1-
NC: 2025:KHC:9083-DB
RFA No. 832 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH, 2025
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO.832 OF 2019 (RES)
BETWEEN:
SRI T.M. UMAPATHAIAH
SECRETARY
ST. JOHN'S BAPTIST EDUCATIONAL ASSOCIATION
SHIVAKUMARASWAMY BADAVANE
HADADI ROAD
DAVANAGERE-577 005.
...APPELLANT
(BY SRI SANTOSH S. GOGI, ADVOCATE, FOR
SRI SHARATH S. GOGI)
AND:
1. K.B. RAMALINGAPPA
S/O. BASAPPAIAH K.
AGED ABOUT 71 YEARS
Digitally signed by
MOUNESHWARAPPA RESIDING AT NO.1645/148
NAGARATHNA
Location: High Court KASABA HOBLI, 2ND CROSS
of Karnataka BEHIND ANJANEYA TEMPLE
VIDYANAGARA
DAVANAGERE-577 002.
2. G.E. UMESHA
S/O. ESHWARA RAO
AGED ABOUT 54 YEARS
BUSINESS MAN
RESIDING AT NO.3035
MCC 'B' BLOCK
DAVANAGERE-577 002.
-2-
NC: 2025:KHC:9083-DB
RFA No. 832 of 2019
SRI ANANDARAJ
SINCE DECEASED, REPRESENTED BY HIS
LEGAL REPRESENTATIVES:
3. ARTHAR TRILOKSING
S/O. A.J. ANANDRAJ
AGED ABOUT 60 YEARS
BUSINESS MAN.
4. ANOOPSING
S/O. ARTHAR TRILOKSING
AGED ABOUT 30 YEARS
BUSINESS MAN.
5. ARTHER JAISING
S/O. A.J. ANANDRAJ
AGED ABOUT 64 YEARS
BUSINESS MAN.
RESPONDENT NOS.3 TO 5
ARE RESIDING AT NO.3992/42
NEAR MES CONVENT, ANJANEYA BADAVANE
DAVANAGERE-577 002.
MOHANSING
S/O. A.J. ANANDRAJ
AGED ABOUT 62 YEARS
SINCE DECEASED, REPRESENTED BY HIS
LEGAL REPRESENTATIVES:
6. JHANCY
W/O. MOHANSINGH
AGED ABOUT 65 YEARS.
7. A.M. SMITHA
D/O. MOHANSINGH
AGED ABOUT 32 YEARS.
8. A.M. SUJITH SINGH
S/O. MOHANSINGH
AGED ABOUT 30 YEARS.
RESPONDENT NOS.6 TO 8
ARE RESIDING AT NO.432
TMC RAGHAVENDRA COLONY AT PO
TALUK TIPTUR, TUMKUR DISTRICT-572 101.
-3-
NC: 2025:KHC:9083-DB
RFA No. 832 of 2019
9. PRASHANT
S/O. ESHWARA RAO
AGED ABOUT 50 YEARS
BUSINESS MAN
RESIDING AT PRASHANT CLOTH CENTER
ASHOKA ROAD
DAVANAGERE-572 101.
REV LOUIS J. PETER
S/O. JOHN MANUAL
AGED ABOUT 64 YEARS
SINCE DECEASED, REPRESENTED BY
LEGAL REPRESENTATIVES:
10. MR. MOSIS
S/O. REV LOUIS J. PETER
PASTOR
JOHN MEMORIAL BAPTIST CHURCH
JALINAGAR
DAVANAGERE-572 101.
11. RATHNAMALA
W/O. TRILOKSING
AGED ABOUT 54 YEARS
EMPLOYEE AND HOUSE WIFE
RESIDING AT NO.3392/42, NEAR MES CONVENT
ANJANEYA BADAVANE
DAVANGERE-577 002.
...RESPONDENTS
(BY SRI PRAKASH M. PATIL, ADVOCATE, FOR R-1,
SRI HAREESH BHANDARY T., ADVOCATE, FOR R-4, &
R-2, R-3, R-5 TO R-11 ARE SERVED AND UNREPRESENTED)
***
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
THE C.P.C., PRAYING TO SET ASIDE THE ORDER DATED 13-3-2019
PASSED IN EXECUTION PETITION NO.298 OF 2017 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE, DAVANGERE, AND ALLOW THE
APPLICATION FILED UNDER ORDER XXI, RULE 97 READ WITH
SECTION 151 OF THE C.P.C., AND RECALL THE ORDER DATED
28-3-2018 PASSED ON I.A. NO.1 UNDER ORDER XXI, RULE 41 OF
THE C.P.C.
THIS REGULAR FIRST APPEAL IS COMING ON FOR HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-4-
NC: 2025:KHC:9083-DB
RFA No. 832 of 2019
CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR
and
HON'BLE MR JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE K.SOMASHEKAR)
This appeal is filed by the objector challenging the
order dated 13-3-2019 passed by the learned Principal
Senior Civil Judge, Davanagere, in Execution Petition
No.298 of 2017.
2. For the purpose of convenience, the parties are
referred to as per their rankings before the trial Court in
Original Suit No.134 of 2013. The appellant is defendant
No.10/objector, respondent No.1 is the plaintiff/decree
holder, and other respondents are the
defendants/judgment debtors.
3. The brief facts of the case of the
appellant/defendant No.10 are that respondent
No.1/plaintiff/decree holder had filed a suit in Original Suit
No.134 of 2013 before the trial Court against the appellant
and other judgment debtors seeking recovery of money for
NC: 2025:KHC:9083-DB
a sum of Rs.52,00,000/- with interest at the rate of
18% per annum from the date of the suit till its
realisation. The plaintiff contended that defendant No.1 is
the Educational Institution and defendant Nos.2 to 9 are
the members of the Managing Committee of defendant
No.1. Among them, defendant Nos.3 to 5 were the
President, Vice President, Secretary and the Treasurer,
respectively and defendant Nos.6 to 9 were the members
of the Institution in the year 2012. In order to run the
Institution, defendant Nos.2 to 8/judgment debtors
borrowed a loan of Rs.40,00,000/-. Later, they failed to
repay the amount. Hence, the plaintiff filed the suit for
recovery of amount.
4. The defendants appeared through their learned
counsel and filed the written statement. After contesting
the matter, the trial Court decreed the suit of the plaintiff
and directed defendant Nos.2 to 8 to pay Rs.52,00,000/-
with interest at the rate of 18% per annum from the date
of the suit till its realisation. Hence, the plaintiff/decree
NC: 2025:KHC:9083-DB
holder filed Execution Petition No.298 of 2017 for recovery
of amount before the Executing Court. In the said
Execution Petition, the plaintiff/decree holder filed I.A.
No.1 of 2018 under Order XXI, Rule 41 of the Code of Civil
Procedure, 1908 (for short, 'CPC') seeking to attach the
suit schedule property standing in the name of defendant
No.1-Institution. The Executing Court, by its order dated
28-3-2018, attached item No.1 of the suit schedule
property and directed the Sub-Registrar to create charge
on the suit schedule property till execution of the
Execution Petition.
5. The appellant/objector filed I.A. No.5 of 2018 in
Execution Petition No.298 of 2017 under Order XXI, Rule
97 read with Section 151 of the CPC seeking to recall the
order dated 28-3-2018 passed on I.A. No.1 of 2018. The
Executing Court, after appreciating the pleadings, oral and
documentary evidence on record, dismissed I.A. No.5 of
2018.
NC: 2025:KHC:9083-DB
6. Being aggrieved by the said order of attachment in
I.A. No.1 of 2018 and rejection of I.A. No.5 of 2018, the
objector has filed the present appeal.
7. The plaintiff/decree holder filed the statement of
objections contending that I.A. No.5 of 2018 is not
maintainable either in law or on facts. The relief sought
by the objector to which he is not the owner of the
property and he is not having source of title. In fact, the
suit schedule property is gifted to judgment debtor Nos.1
and 3. Hence, he prayed to dismiss the application.
8. Judgment debtor Nos.1 and 3 filed objections to
I.A. No.5 of 2018 contending that the application is not
maintainable either in the eye of law or on facts. The
objector is claiming the suit schedule property which is
attached by the Executing Court under I.A. No.1 of 2018.
The said schedule property was allotted by the
Davangere-Harihar Urban Development Authority (for
short, 'DUDA') in the name of the President and the
Secretary by lease-cum-sale basis and katha was mutated
NC: 2025:KHC:9083-DB
in the name of Sri G. E. Umesh (judgment debtor
No.1/President) and Sri Arther Jaisingh (judgment debtor
No.3/Secretary). The plaintiff/decree holder-
Sri K.B. Ramalingappa had issued the loan amount to the
development of the Institution and the said amount is
utilised for the improvement/development of existing
building and also to run the Institution. The loan amount
was not personally used by the members of the said
Institution. As per Mahanagar Palike Assessment extracts,
katha in respect of item No.1 of the suit schedule property
stands in the name of judgment debtor Nos.1 and 3. Thus,
the attachment and the charge created on the suit
schedule property is justified one and no where the suit
schedule property was transferred in the name of the
objector/appellant. Hence, they prayed to dismiss the
application.
9. Having considered the submission of both the
parties and perusal of the material available on record, the
following point arises for our consideration:
NC: 2025:KHC:9083-DB
Whether the appellant/objector/defendant
No.10 has made out sufficient grounds to
allow I.A. No.5 and to recall the order dated
28-3-2018 passed on I.A. No.1 of 2018 by
the Executing Court?
10. In this case, the appellant/objector has taken
the contention that the suit schedule property belongs to
the DUDA. It was allotted by the DUDA in the name of
the President and the Secretary of the Educational
Institution, who are none other than judgment debtors
No.1 and 3.
11. From perusal of the material on record, it
appears that, in view of the order passed on I.A. No.1 of
2018, the Sub-Registrar, Davanagere, created charge on
the suit schedule property. The Executing Court attached
the property which was not owned by the DUDA. Hence,
the appellant/objector/defendant No.10 filed application
under Order XXI, Rule 97 of the CPC. Thus, it is just and
necessary to analyse the said provisions which is as
under:
- 10 -
NC: 2025:KHC:9083-DB
"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
immoveable property, which can be
investigated in the Execution proceedings and
not the claim of a person who offers to
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
- 11 -
NC: 2025:KHC:9083-DB
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 immoveable property or for
possession by a purchaser of an immoveable
property sold in execution of a decree.
Persons who are not in actual possession of
immovable property are not given a right to
agitate their rights in proceedings in
execution of a decree or possession under the
guise of an application offering obstruction or
objection to the execution. It is abundantly
clear that it is only a person who is in actual
possession of the immovable property in
respect of which either a decree for
possession or objection by filing an
application. If a person making such an
application is found to be not in actual
possession of the property then he or she
cannot maintain the application and the
Executing Court would be free to proceed with
the execution, ILR 1995 Kar 1892.
- 12 -
NC: 2025:KHC:9083-DB
Order 21, Rule 97(1) and (2), 101, 98,
99, 100, 103 (as they stood prior to, and
after, 1976 Amendment), 35 and 36:
Apex Court has held in Shreenath Vs. Rajesh,
(1998) 4 SCC 543; AIR 1998 SC 1827 that
"Under Order 21, Rule 35(1), the executing
court delivers actual physical possession of
the disputed property to the decree-holder
and, if necessary, by removing any person
bound by the decree who refuses to vacate
the said property. Under Rule 36, the decree-
holder gets the symbolic possession. Order
21, Rule 97 conceives of resistance or
obstruction to the possession of immovable
property when made in execution of a decree
by "any person." This may be either by the
person bound by the decree, claiming title
through the judgment-debtor or claiming
independent right of his own including a
tenant not party to the suit or even a
stranger. A decree-holder, in such a case,
may make an application to the executing
court complaining such resistance for delivery
of possession of the property, Rule 97(2) after
1976 substitution empowers the executing
courts when such claim is made to proceed to
- 13 -
NC: 2025:KHC:9083-DB
adjudicate upon the applicant's claim in
accordance with the provisions contained
thereinafter. This refers to Order 21, Rule 101
(as amended by 1976 Act) under which all
questions relating to right, title or interest in
the property arising between the parties
under Order 21, Rule 97 or Rule 99 should be
determined by the court and not by a
separate suit.
The Apex Court has explained the scope of
adjudication of right, title and interest in
property before execution under Order XXI,
Rules 98, 100, 101, 103 and 104 in
Nooruddin V K L Anand, (1995) 1 SCC 242.
"The scheme of the Code clearly adumbrates
that when an application has been made
under Order XXI, 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 order in that
behalf be made. The determination shall be
conclusive between the parties as if it was a
- 14 -
NC: 2025:KHC:9083-DB
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. 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".
12. We have gone through the pleadings, evidence
and documents relied on by the parties. The main
contention of the objector is that the suit schedule
property was leased out by the DUDA in the name of the
President and the Secretary of St. John's Educational
Institution and it was attached by the Executing Court
under I.A. No.1 of 2018. Admittedly, the objector was a
party to the proceedings in Original Suit No.134 of 2013.
He contested the matter on behalf of other defendants
and also examined on oath as DW1. In the evidence, the
objector admitted certain aspects of the matter viz., he
has been working as Secretary of the Institution since
- 15 -
NC: 2025:KHC:9083-DB
2013. From perusal of the material available on record, it
clears that one V. Manjunath gifted the suit schedule
property to St. John's Educational Institution. The objector
further admitted that earlier President and Secretary of
the Institution had borrowed loan from the plaintiff and
later, the Institution borrowed loan from Bank and thus,
matter was pending before the Debts Recovery Tribunal
and later, the former President and Secretary of the
Institution cleared the Bank loan. The objector has
specifically admitted that the suit schedule property
stands in the name of former President and Secretary. In
view of existence of new Management Committee, the
Committee has not transferred katha in respect of suit
schedule property to its name. The objector was having
complete knowledge about the Debts Recovery Tribunal
proceedings and he appeared before the Debts Recovery
Tribunal. Admittedly, gift deed was executed by one
V. Manjunath in favour of the Institution. Therefore, the
DUDA cannot cancel the order passed by the Deputy
- 16 -
NC: 2025:KHC:9083-DB
Commissioner and the DUDA cannot grant leasehold
rights in favour of the objector.
13. The objector admitted that he had knowledge
about the outstanding loan of the Institution and the
same was cleared by new President and Secretary of the
Institution. It shows that in the year 2016, St. John's
Educational Institution repaid the loan to the Bank and
secured the documents. Thus, the subject matter of gift
deed and the suit schedule property are one and the
same. The gift deed stands in the name of the President
and the Secretary of the Institution which clearly
establishes that the suit schedule property stands in the
name of one V. Manjunath and later, he gifted the same
in favour of the President and the Secretary. The
Management Committee availed loan from the Bank as
well as from private persons to run the Institution. Later,
the Institution was unable to repay the Bank loan and
other private loan. Thus, the Bank and private persons
initiated proceedings against the Institution and
- 17 -
NC: 2025:KHC:9083-DB
Management Committee. Thus, all these factual aspects
are within the knowledge of the objector. The new
Management Committee has cleared the Bank loan and
received original documents pertaining to the suit
schedule property. These aspects clearly demonstrate that
the Institution cleared the Bank loan as per the order
passed by the Deputy Commissioner. Therefore, the
objector was a party to the earlier proceedings. However,
he never took such contention in the suit. Once he was a
party to the proceedings, he is under the obligation and
bound by the decree. The objector, in order to
substantiate his contention that the DUDA granted
leasehold rights in his favour, has not placed any material
before the Executing Court or before this Court. Thus, it
infers that, one V. Manjunath being absolute owner and in
possession of the suit schedule property gifted the same
to the Institution. Under such circumstances, it is not
possible for the DUDA to lease out the suit schedule
property in favour of the objector without having any
right. Hence, I.A. No.5 of 2018 filed by the objector was
- 18 -
NC: 2025:KHC:9083-DB
not maintainable before the Executing Court. If the
objector is aggrieved by the judgment and decree, he
could have preferred an appeal. However, in this case, it
appears that, the objector never preferred appeal
aggrieved by the judgment and decree passed in Original
Suit No.134 of 2013. Thus, the objector has not made out
any grounds to recall the order dated 28-3-2018 passed
on I.A. No.1 of 2018.
14. For the reasons stated above, the appeal stands
dismissed. The order dated 13-3-2019 passed by the
learned Principal Senior Civil Judge, Davanagere, in
Execution Petition No.298 of 2017, is hereby confirmed.
In view of the dismissal of the appeal, pending
applications, if any, shall stand dismissed.
Sd/-
(K.SOMASHEKAR)
JUDGE
Sd/-
(VENKATESH NAIK T)
JUDGE
KVK
