Karnataka High Court
Smt. Girija Acharthi vs Mrs. Rama Laxman Acharya on 18 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1562 of 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1562 OF 2024 (INJ)
BETWEEN:
SMT. GIRIJA ACHARTHI
W/O LATE RAMANNA ACHARY
SINCE DEAD BY HER LRS.
1. SMT. NETHARAVATHI ACHARTHI
D/O LATE RAMANNA ACHARY
AGED ABOUT 65 YEARS
2. SRI. HARISHCHANDRA ACHARYA
S/O LATE RAMANNA ACHARY
AGED ABOUT 63 YEARS
3. SRI. SUNDARA ACHARYA
S/O LATE RAMANNA ACHARY
Digitally signed AGED ABOUT 61 YEARS
by DEVIKA M
Location: HIGH
COURT OF 4. SMT. SUSHEELA ACHARTHI
KARNATAKA D/O LATE RAMANNA ACHARY
AGED ABOUT 58 YEARS
5. SMT. SUMATHI ACHARTHI
D/O LATE RAMANNA ACHARY
AGED ABOUT 58 YEARS
6. SRI. VASANTHA ACHARYA
D/O LATE RAMANNA ACHARY
AGED ABOUT 54 YEARS
7. SMT. REVATHI ACHARTHI
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RSA No. 1562 of 2024
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D/O LATE RAMANNA ACHARY
AGED ABOUT 54 YEARS,
8. SRI. JAYANANDA
D/O LATE RAMANNA ACHARY
AGED ABOUT 49 YEARS,
ALL ARE RESIDING AT PADUMANE
INNA VILLAGE, KARKALA TALUK
UDUPI DISTRICT-576 121.
...APPELLANTS
(BY SRI. PRASANNA V.R., ADVOCATE)
AND:
1. MRS. RAMA LAXMAN ACHARYA
W/O LATE LAXMAN ACHARYA,
AGED ABOUT 81 YEARS,
2. MRS. ASHA PRAVEEN
D/O LATE LAXMAN ACHARYA
AGED BOUT 57 YEARS,
3. MRS. USHA MOHAN
D/O LATE LAXMAN ACHARYA
AGED BOUT 56 YEARS,
4. MR. RAMESH ACHARYA
S/O LATE LAXMAN ACHARYA
AGED BOUT 54 YEARS,
5. MR. SRINIVAS ACHARYA
S/O LATE LAXMAN ACHARYA
AGED BOUT 50 YEARS,
RESPONDENTS NO.1 TO 5 ARE ALL
R/AT KODI HOUSE, INNA VILLAGE
SANTHOOR KOPLA POST
KARKALA TALUK
UDUPI DISTRICT - 576 121.
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RSA No. 1562 of 2024
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6. MRS. RAJEEVI ACHARTHI
W/O LATE KRISHNAYYA ACHARYA
AGED ABOUT 73 YEARS
R/AT KODI HOUSE, INNA VILLAGE
SANTHOOR KOPLA POST
KARKALA TALUK
UDUPI DISTRICT-576 121.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 25.06.2024
PASSED IN R.A.NO.27/2017 ON THE FILE OF SENIOR CIVIL
JUDGE AND ACJM, KARKALA, DISMISSING THE APPEAL AND
CONFIRMING THE ORDER DATED 22.04.2017 PASSED ON IA
NO.VII IN EX NO.15/2007 ON THE FILE OF PRINCIPAL CIVIL
JUDGE AND JMFC, KARKALA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission and I have heard
learned counsel for the appellants.
2. This second appeal is filed against the concurrent
finding of the Trial Court and the First Appellate Court.
3. The factual matrix of the case of the claim
petitioner is that an application is filed under Order XXI Rules
99 and 101 read with Section 151 of CPC praying the Court to
recall the delivery warrant issued in the case and to adjudicate
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and decide the claim of the petitioner. In support of this
application, it is contented that petitioner is the sharer in the
properties in respect of which partition deed was entered into
on 04.01.2000 between Ramanna Achary and his brothers. The
petitioner is the wife of Ramanna Achary. After the death of
Ramanna Achary, she along with her children succeeded to the
said properties in respect of which delivery warrant is issued
herein including other properties. It is also contented that
O.S.No.73/2006 and O.S.No.199/1985 were filed by
suppressing the true facts and the petitioner and her children
were not parties to the said suits. It is further pleaded that the
petitioner came to know about the above said suits only when
the Bailiff of the Court came to execute the delivery warrant.
Hence, filed the present application.
4. The decree holders' opponents have filed objections
contending that the very application is not maintainable. The
application is an attempt of abuse of process of law and the
same is liable to be dismissed. Decree holders have also denied
obtaining of decree in earlier suits by suppressing true facts. It
is contented that the execution is not against the property of
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the petitioner. The execution is an injunctive decree against the
judgment debtors and the petitioner is acting at the behest of
the judgment debtors with malafide intention.
5. The Trial Court considering the grounds urged in
the application as well as the objection statement, formulated
the points whether the claim petitioner establishes that she is
the third party to the decree passed in O.S.No.73/2006 and
whether the claim of the petitioner requires fresh adjudication.
Having considered the evidence of both the parties, particularly
the admission on the part of the petitioner, in detail discussed
in paragraph Nos.11 to 15 and comes to the conclusion that the
children of this petitioner are also party to O.S.No.73/2006.
Hence, the very contention that suppressing the material facts
obtained the decree was not accepted and also taken note of
the effort made by the petitioner at the behest of her children
and filing of the present application, that too when the delivery
warrant was issued and the judgment and decree was not
challenged, since the children are also co-owners, in respect of
the very judgment and decree passed in O.S.No.73/2006.
Hence, dismissed the application.
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6. Being aggrieved by the said judgment and decree,
an appeal is filed in R.A.No.27/2007. The First Appellate Court
also having considered the grounds which have been urged in
the appeal, formulated the points whether the order passed by
the Trial Court is contrary to the facts of the case and evidence
on record and whether it requires interference. The First
Appellate Court also having reassessed both oral and
documentary evidence, particularly taking note of the
contention of the appellant, in paragraph No.17 taken note that
her main contention is that she is in exclusive possession and
enjoyment of the suit property and that she was not aware of
the suits filed in O.S.No.73/2006 and O.S.No.199/1985 passed
by this Court and the same is not binding upon her or her
children. But the Trial Court taken note of the earlier suit in
O.S.No.87/2007 which is marked as Ex.D1 copy of the
judgment and also observed that a perusal of the judgment and
decree passed by the Trial Court in O.S.No.87/2007 goes to
show that both the suit of the plaintiff and the counter claim of
the defendants are dismissed. Therefore, it can be concluded
that though the claim petitioner submits that she has been
declared as owner of the said property, the said suit has been
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dismissed and the claim of the plaintiff/present claim petitioner
seeking permanent injunction against the defendants/decree
holders was rejected. Even a perusal of schedule of the suit in
O.S.No.73/2006 clearly goes to show that the properties
included in O.S.No.73/2006 in 'B' schedule i.e. Sy.No.61/23B6,
Sy.No.61/23B5 and Sy.No.61/14D are not included in
O.S.No.87/2007 and taken note of the schedule which have
been mentioned in the earlier suit and also the present suit.
Apart from that admission of the claim petitioner itself shows
that she had the knowledge of the case pending in
O.S.No.73/2006 and even no evidence is adduced by the claim
petitioner or the judgment debtor in the original suit at least to
show that the properties belong to them or to the claim
petitioner.
7. Having considered all these materials, in detail
discussed in paragraph Nos.18 to 21 considering the contents
of the application and also the reasoning given by the Trial
Court comes to the conclusion that entire evidence of D.W.1
has been falsified by way of cross-examination and admissions
made by the claim petitioner and the claim petitioner being the
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mother of the judgment debtor Nos.2 and 3 was having very
much knowledge about pendency of O.S.No.73/2006 and no
ground has been made out to recall the delivery warrant issued
against them and confirmed the same. Being aggrieved by the
concurrent finding, present second appeal is filed before this
Court.
8. The main contention of learned counsel appearing
for the appellant before this Court is that Executing Court has
committed an error in dismissing the application filed by the
predecessor of the appellant/third party obstructer having
accepted the fact that decree passed in O.S.No.199/1985 and
sketch drawn as per Ex.D14 demarcating the property therein
are not binding on the plaintiff as held in O.S.No.87/2007 filed
by the third party obstructer against the decree holders, whose
counter claim is also being rejected. The counsel also would
contend that the First Appellate Court failed to consider the
material on record and not justified in rejecting I.A.No.4 filed
under Order 41 Rule 27 read with Section 151 of CPC in
R.A.No.27/2017, so as to examine the Court Commissioner,
though the Executing Court has observed that as the Court
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Commissioner was not examined by the claim petitioner, his
report and sketch will not come to her aid and the very
approach of even the First Appellate Court is erroneous and the
Trial Court also committed an error.
9. Having heard learned counsel for the appellant and
also the material available on record, particularly the claim
made by the appellant before the Trial Court based on the
judgment and decree passed in O.S.No.87/2007 which is
dismissed, the counter claim of the defendants is also
dismissed. The very contention of the defendant in the suit in
O.S.No.73/2006 is that appellant is not the party to the
proceedings. But the fact is that her children i.e., judgment
debtor Nos.1 and 2 are the parties and they were having the
knowledge about the claim made by the plaintiff in
O.S.No.73/2006 and also the fact that they are the co-owners
in respect of the property and the said factor was also taken
note of and even inspite of they having the knowledge about
the suit filed in O.S.No.73/200, even the children also did not
contest the matter and the present appellant also not made any
effort to file any application in the said suit and when the
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judgment and decree passed in O.S.No.73/2006 came to be
decreed by considering the factual aspects and the same
remained unchallenged and when the delivery warrant was
issued, the present application is filed and the same was also
taken note of by the Trial Court in paragraph No.13 while
discussing the same. Hence, the present application is nothing
but an instigation made by the judgment debtor Nos.1 and 2,
who are none other than the children of the present petitioner
and the First Appellate Court also taken note of the oral and
documentary evidence available on record and in detail
discussed in paragraph No.19 and 20 and even the contention
of the petitioner was also discussed in paragraph No.17 and
taken note of document i.e., Ex.D1 decree passed in
O.S.No.87/2007 and in detail discussed that the decree in
respect of O.S.No.73/2006 is not the subject matter of the suit
in O.S.No.87/2007, wherein also the suit was dismissed and
counter claim was also dismissed. The First Appellate Court also
discussed in paragraph No.19 that the admission of the claim
petitioner itself goes to show that she had the knowledge about
the case pending in O.S.No.73/2006 and the judgment
debtors, who are none other than the children of the present
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appellant in the original suit, at least to show that the
properties belong to them or to the claim petitioner, no
evidence is adduced before the Court and they kept quiet and
when the entire evidence of D.W.1 has been falsified by way of
cross-examination and admission made by the claim petitioner
and the claim petitioner being the mother of judgment debtors
made an attempt to defeat the very fruits of the decree passed
in O.S.No.73/2006. When such material is considered by the
Trial Court and both the Courts have taken note of the fact that
when in the execution petition delivery warrant was issued, at
that juncture, an application is filed having the knowledge
about the decree passed in O.S.No.73/2006, wherein her
children are also the parties, now cannot contend that she was
not added as party in the original suit, since her children are
also parties and they are also the co-owners as contended by
the appellant. When such being the case, I do not find any
ground to admit the second appeal and frame any substantial
question of law and the same is considered by both the Courts,
particularly taking the admission of the witness, who has been
examined before the Trial Court. Hence, not a case to invoke
Section 100 of CPC.
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10. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
