[Cites 4, Cited by 0]
Karnataka High Court
Shivalingappa vs Govindappa K on 13 February, 2026
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R.F.A. No.1964/2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2026
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
REGULAR FIRST APPEAL NO.1964/2025 (RES)
BETWEEN:
SHIVALINGAPPA
S/O LINGAPPA
AGED ABOUT 64 YEARS
R/AT NO.95/4, V.T. STREET
Digitally signedKOTHANUR VILLAGE AND POST
by BENGALURU 560 077.
ARSHIFA BAHAR
KHANAM ...APPELLANT
HIGH COURT OF (BY SRI. RAMESH K, ADV.,)
KARNATAKA
AND:
1. GOVINDAPPA .K
S/O KRISHNAPPA .L
AGED ABOUT 56 YEARS
R/AT. RAMPURA VILLAGE
BIDARAHALLI HOBLI
VIRGONAGAR POST
BENGALURU EAST TALUK
BANGALORE 560 049.
2. RAMESH KUMAR .K
S/O KRISHNAMRAJU
AGED ABOUT 52 YEARS
NO.57, NEAR BDS GARDEN
GEDDALAHALLI
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R.F.A. No.1964/2025
HC-KAR
KOTHANUR POST
BENGALUREU 560 077.
...RESPONDENTS
(BY SRI. MURALI D, ADV., FOR C/R1
R2 SERVICE OF NOTICE IS D/W V.C.O. DTD:01.12.2025)
*******
THIS RFA IS FILED UNDER SEC.96 OF CPC., PRAYING TO
PASS AN ORDER CALLING FOR RECORDS IN EXECUTION
PETITITION NO.1052/2020 PENDING ON THE FILE OF THE VI
ADDL. CITY CIVIL COURT (CCH-11), BANGALORE AND PERUSE
THE ORDER DATED 25.03.2025 PASSED ON I.A.NO.3 THEREIN
AND SET ASIDE IMPUGNED ORDER AND DISMISS THE
EXECUTION PETITION IN TOTO TOGETHER WITH GRANTING
SUCH RELIEF/S THAT THIS HON'BLE COURT DEEMS FIT IN THE
FACTS AND CIRCUMSTANCES AND IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
06.02.2026, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY VIJAYKUMAR A. PATIL J., DELIVERED
THE FOLLOWING:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
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R.F.A. No.1964/2025
HC-KAR
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL)
This appeal is filed by the appellants under Section
96 of the Code of Civil Procedure, 1908 (hereinafter
referred to as 'CPC') challenging the order dated
25.03.2025 passed on I.A.No.III in Ex.No.1052/2020 by
the VI Additional City Civil and Sessions Judge at
Bengaluru City (CCCH-11) (hereinafter referred to as 'the
Execution Court').
2. The brief facts leading to the filing of this
appeal are that the appellant was the owner of the
property of K.Narayanapura Grama Panchayath bearing
House list khatha No.89/95/4, formed in property No.4,
bearing BBMP Khatha No.89/20/237/1/95/9. It is averred
that out of the aforesaid property, the appellant sold a
portion of the property in favour of respondent No.2-
judgment debtor vide sale deed dated 11.09.2015. It is
further averred that the respondent No.2-judgment debtor
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entered into an agreement of sale dated 26.09.2016 with
respondent No.1-decree holder. The respondent No.1-
decree holder filed a suit in O.S.No.7803/2019 for specific
performance against the respondent No.2-judgment
debtor. The said suit came to be compromised and the
respondent No.1-decree holder filed an execution petition
for the execution of the said decree. In the said execution
petition, the appellant filed an application under Order XXI
Rule 97 read with Section 151 of the CPC seeking
dismissal of the execution proceedings. The respondent
No.1-decree holder opposed the said application by filing
objections. The Execution Court, on considering the
application and the objections, proceeded to dismiss the
same. Being aggrieved, the appellant has filed this
appeal.
3. Sri.Ramesh K, learned counsel appearing for
the appellant submits that the Execution Court, without
considering the law in its proper perspective has
proceeded to pass the impugned order. It is submitted
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that the appellant has retained a portion of the property in
question as is evident from the revenue records/khatha
and the respondent No.2-judgement debtor has
fraudulently conveyed the whole property to the
respondent No.1-decree holder and the same is sought to
be executed in the execution petition, which is
impermissible. It is further submitted that the Execution
Court has failed to consider the fact that the decree has
already been satisfied by way of execution of the sale
deed by the respondent No.2-judgment debtor in favour of
respondent No.1-decree holder and a relief beyond the
said decree cannot be claimed in an execution petition.
Hence, he seeks to allow the appeal on merits.
4. Sri.Murali D, learned counsel appearing for the
respondent No.1-decree holder supports the impugned
order of the Execution Court and submits that the
Execution Court has rightly considered the fact that the
appellant has not retained any portion of the property in
the suit schedule property. It is submitted that the
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Execution Court has rightly placed reliance on the decision
of the Hon'ble Supreme Court in the case of MANICKAM
ALIAS THANDAPANI AND ANR. Vs. VASANTHA1 and
held that the relief of possession is ancillary to the decree
for specific performance and need not be specifically
claimed, which does not call for any interference. Hence,
he seeks to dismiss the appeal.
5. We have heard the arguments advanced by the
learned counsel appearing for the appellant, learned
counsel appearing for the respondent No.1 and perused
the material available on record. We have given our
anxious consideration to the submissions advanced on
both the sides.
6. The point that arises for our consideration in
this appeal is
"Whether the impugned judgment and
decree of the Execution Court calls for any
interference?"
AIR Online 2022 SC 682
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7. The above point is answered in the negative for
the following reasons:
a) The appellant was the owner of the property of
K.Narayanapura Grama Panchayath bearing House list
khatha No.89/95/4, formed in property No.4, bearing
BBMP Khatha No.89/20/237/1/95/9. It is averred that out
of the aforesaid property, the appellant sold a portion of
the property measuring East-West 30 ft. and North-South
42 ft., consisting of 5 square RCC Roofed House in ground
floor and 5 square RCC roofed house in first floor in favour
of respondent No.2-judgment debtor vide sale deed dated
11.09.2015. It is further averred that the respondent
No.2-judgment debtor signed an agreement of sale with
respondent No.1-decree holder dated 26.09.2016 without
mentioning the 5 square RCC roofed building on the
ground floor as well as on the first floor. The respondent
No.1-decree holder filed a suit for specific performance
against the respondent No.2-judgment debtor in
O.S.No.7803/2019. The said suit came to be
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compromised and the respondent No.1-decree holder filed
an execution petition for the execution of the said decree
in Ex.No.1052/2020. In the said execution petition, the
appellant filed an application under Order XXI Rule 97 read
with Section 151 of the CPC, seeking dismissal of the
execution proceedings on the ground that the respondent
No.2-judgment debtor, in collusion with the respondent
No.1-decree holder has sold the whole property of the
appellant including the portion retained by him and the
same has also been conveyed by the sale deed dated
28.10.2021. It was also contended by the appellant that
since no prayer for delivery of possession was claimed by
the respondent No.1-decree holder, the same cannot be
claimed at this stage. The respondent No.1-decree holder
opposed the said application by filing objections. The
Execution Court, on considering the application and the
objections, proceeded to dismiss the same on the ground
that there was no portion of the property retained by the
appellant. The material on record clearly indicates that
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the appellant has sold the entire property to the
respondent No.2, which is the suit schedule property in the
O.S.No.7803/2019. There is no iota of evidence placed
before the Court to establish that the appellant has
retained some portion of the land as claimed.
b) The schedule to the sale deed dated 11.09.2015
executed by the appellant in favour of the respondent
No.2-judgment debtor and the schedule to the sale deed
dated 28.10.2021 executed by the respondent No.2-
judgment debtor in favour of the respondent No.1-decree
holder, clearly tallies with each other and there is no
excess land left out as asserted by the appellant. The
property tax assessment extract produced by the appellant
along with the memo cannot be the sole basis to come to
the conclusion that the appellant has retained some
portion of the land after execution of the sale deed in
favour of the respondent No.2-judgment debtor. The
Execution Court, considering the pleading scheduled to the
plaint and the schedule to the sale deeds has clearly
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recorded the finding that there is no excess land available
to be claimed by the appellant. The Execution Court also
made a finding with regard to the claim of possession and
held that the relief of possession being ancillary to the
relief of specific performance, the same need not be
claimed separately and proceeded to dismiss the
application. The said finding is based on the material
placed before it and is neither perverse nor contrary to the
material on record calling for interference in this appeal.
The appellant has failed to establish that he has any
semblance of right over the alleged portion of land. We do
not find any merit in this appeal. The Execution Court has
rightly recorded the finding with regard to the delivery of
possession, as the said relief being ancillary to the main
relief can be granted. The appellant, having failed to
establish his right over the property in question, cannot
have any locus with regard to the delivery of possession in
the execution of a decree by the Execution Court.
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8. For the aforementioned reasons, the regular
first appeal is devoid of merits and the same is rejected.
No order as to costs.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
RV
List No.: 3 Sl No.: 3
