Karnataka High Court
Smt Juliyan Crasta vs Smt K G Hamsalatha on 7 February, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
W.P.No.39735/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION No.39735/2016 (GM - CPC)
BETWEEN
SMT. JULIYAN CRASTA
AGE 42 YRS,
W/O SRI. K.G. VINUP,
R/O NO.139, DEVI FARM HOUSE,
OLD KESARE, K.R. MILLS PO,
MYSORE. ... PETITIONER
[BY SRI. ASHOK K.L., ADVOCATE]
AND
1. SMT K G HAMSALATHA
AGE 46 YRS,
W/O SRI G.M. SHIVARAJU,
R/O NO.277/2, 1ST CROSS,
MARIGOWDA LAYOUT,
MANDYA, MANDYA DISTRICT.
2. SRI. K.G. VINUP
AGE 49 YEARS,
S/O SRI V GOSAPPA
R/O NO.139, JANJAR 483,
DEVI FARM HOUSE,
KESARE VILALGE, KASABAL HOBLI,
MYSORE TALUK, MYSORE. ... RESPONDENTS
(BY SRI.P.B. AJIT, ADV. FOR R1;
R2 - SERVED)
W.P.No.39735/2016
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS
PERTAINING TO EX.NO.347/2015 ON THE FILE OF THE PRL. SR.
CIVIL JUDGE AND C.J.M. AT MYSORE PERUSE THE ORDER DTED
05.03.2016 VIDE ANNEX-F AND SET ASIDE THE SAME AS
ILLEGAL ARBITRARY AND UNSUSTAINABLE AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING - 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. The Petitioner is before this Court seeking for the following relief:
"a) Call for records pertaining to Ex.No.347/2015 on the file of the Principal Sr.Civil Judge and CJM at Mysore, peruse the order dated:05-03-2016 vide Annexure - F and set aside the same as illegal arbitrary and unsustainable, and
b) Pass such other orders as this Hon'ble Court deem fit under circumstances of the case including award of cost of this petition in the interest of justice and equity."
2. Execution No.347/2015 had been filed seeking for the execution of the judgment and Decree passed in O.S.No.837/2014.
W.P.No.39735/20163
3. O.S.No.837/2014 had been filed by the first Respondent herein against the second Respondent herein seeking for a direction to the second Respondent herein, who was the Defendant therein to vacate and hand over the vacant possession of the plaint schedule property to the Plaintiff.
4. The Petitioner is the wife of the 2nd Respondent herein, the 2nd Respondent was the Defendant in the Suit as also Judgement Debtor in the execution Petition and 1st Respondent herein was the Plaintiff in the Suit and Decree holder in the Execution Petition. Petitioner was not a party to the Suit but filed an application under Order 21 Rule 97 in the execution proceedings.
5. The parties are referred to by their rank in the trial court.
6. The case of Plaintiff therein is that Defendant is her brother. The suit schedule property has been allotted to the share of Plaintiff's father V.Gosappa and mother Smt.A.L.Saraswathy as per Registered Partition deed dated 08.04.1999. The parents of the Plaintiff therein had W.P.No.39735/2016 4 given the suit schedule property along with the said land to the Plaintiff under a registered Settlement Deed dated 26.06.2009 by virtue of which the Plaintiff became the absolute owner of the suit schedule property and has been paying the taxes etc.
7. It is alleged that Defendant, who is none other than her brother, has been allowed to occupy the premises gratuitously on a temporary basis. Despite the lapse of time, Defendant did not vacate the premises, and as such, a legal notice came to be issued. Despite the legal notice, Defendant therein did not vacate the premises leading up to the Suit.
8. In the said Suit, the Defendant, though served, after service of summons did not appear in the Court and as such, he was placed ex-parte, and the matter continued for trial.
9. After trial, the trial Court considering the evidence on record, including the documentary evidence, more W.P.No.39735/2016 5 particularly the reply to a notice dated 07.07.2014 produced at Ex.P6, took cognisance of the admission made in the reply notice that Defendant had accepted the partition deed and that he was allowed to stay in the schedule property gratuitously and on that basis, decreed the Suit directing the Defendant therein to vacate and handover the plaint schedule property, within three months from the date of the order.
10. Plaintiff filed Execution No.347/2015 seeking for executing the aforesaid judgment and Decree. In the said proceedings, an application under Order XXI Rule 97 and 101 read with Section 151 of CPC came to be filed by the Petitioner herein seeking for withdrawal/suspension of the order of ejectment, pending disposal of the application. In the said application petitioner claimed that she was the wife of Defendant/ Judgement Debtor therein and that the issue of partition between Plaintiff and Defendant has not been resolved amicably. Her Husband was mentally unfit to act or to do any acts, deeds or things since he was a W.P.No.39735/2016 6 chronic and compulsive addict to liquor and drugs. In the said application, it is alleged that she came across the notice on the above matter, delivered at home, when she challenged her Husband about the same, her Husband pleaded ignorance and unawareness about the same. It is only thereafter, that she engaged the services of an Advocate and filed the aforesaid application. In the affidavit in support of the said application, it was alleged that the property is in joint possession of her Husband and the Plaintiff. Hence, she cannot be ejected or evicted and as such, relief aforesaid has been sought for.
11. The said application came to be objected too. After hearing the parties, the Executing Court vide impugned order dated 05.03.2016 rejected the said application.
12. The Executing Court was of the opinion that the application was filed only to stall execution of the Decree passed in O.S.No.837/2014. The application was devoid of merits. If such a frivolous application has to be considered, the Decree passed by the Court would be W.P.No.39735/2016 7 rendered only a paper decree and as such dismissed the application. Being aggrieved by the same, the Petitioner who was applicant therein is before this Court.
13. Sri. Ashok K.L., learned counsel for the Petitioner would submit that 13.1. Defendant is a person of unsound mind and therefore, the Petitioner has been appointed as a guardian of the Defendant in G&WC No.35/2015 vide order dated 11.07.2017 and as such, she was entitled to file an application objecting to the execution of the Decree. This fact has not been properly considered by the Execution Court. 13.2. When the Defendant was a person of unsound mind, though he might not have entered appearance in the Suit, a decree could not have been passed behind his back and as such, the Petitioner being the wife of respondent No.2 ought to have been permitted to come on record and her objections be taken into W.P.No.39735/2016 8 consideration as regards the enforcement of the Decree.
13.3. Subsequent to the Decree a suit in O.S.No.180/2017 has also been filed before the Principal Senior Civil Judge at Mysore, wherein she represents her Husband as his guardian and in the said Suit, relief of partition and separate possession has been sought for including the property subject matter of the present proceedings, which is detailed as item No.1 to the said Suit.
13.4. In such a background the Petitioner could not be evicted from the premises and seeks for the writ petition to be allowed.
14. Per contra, Sri.Vyshak, learned counsel appearing on behalf of Plaintiff submits that 14.1. The application as also the present petition is an abuse of the process of the Court inasmuch as in the Suit in O.S.No.837/2014, the reply notice got issued W.P.No.39735/2016 9 by the Defendant, Husband of the Petitioner has been produced as Ex.P6, which was taken into consideration by the Trial Court. The said Ex.P6 was issued in reply to the notice dated 07.07.2014, though he does not have the date of the reply notice, he submits that a reply was issued subsequent to 07.07.2014 and in the reply, the Husband of the Petitioner has clearly admitted the partition dated 08.04.1999 as also his gratuitous occupation of the property subject matter of the writ petition.
14.2. The proceedings in G&WC No.35/2015 had been filed in November, 2015 subsequent to the judgment being passed in O.S.No.837/2014 on 26.02.2015 and the Suit in O.S.No.180/2017 was filed nearly two years thereafter.
14.3. The Petitioner has no manner of right, title or interest to object to the execution of a decree, which has been passed in a valid manner after service of W.P.No.39735/2016 10 notice to the Defendant therein and the only option that is available for the Petitioner was to challenge the said Decree, which has not been done. The Decree has attained finality and has been rightly sought to be executed by filing of the Execution proceedings in Execution No.347/2015.
14.4. He relies on the following judgments in support of his contentions:
i) Brahmdeo Chaudhary vs. Rishikesh Prasad Jaiswal and another [(1997) 3 SCC 694], more particularly para Nos.8 and 9 therein, which were reproduced hereunder for easy reference.
"8. A conjoint reading of Order 21 Rules 97, 98, 99 and 101 projects the following picture:
(1) If a decree-holder is resisted or obstructed in execution of the Decree for possession with the result that the Decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21, Rule 35, then the decree-holder has to move an application under Order 21, Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97, sub-rule (2) read with Order 21 Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without a W.P.No.39735/2016 11 just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order 21, Rule 98, sub-rule (2) and the decree-holder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21, Rule 101 and no separate suit would lie against such order meaning thereby the only remedy would be to prefer an appeal before the appropriate appellate Court against such deemed Decree.
(2) If for any reason a stranger to the Decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on the spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order 21 Rule 99 CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order 21, Rule 98, sub-rule (1) CPC the executing Court can direct the stranger applicant under Order 21, Rule 99 to be put in possession of the property of if his application is found to be substanceless, it has to be dismissed. Such an order passed by the Executing Court disposing of the application one way or the other under Order 21, Rule 98, sub-rule (1) would be deemed to be a decree as laid down by Order 21, Rule 103 and would be appealable before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order 21, Rule 101.
9. In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of Decree for possession obtained by a decree-holder and whose attempts at executing the said Decree meet with rough weather. Once resistance is offered by a purported stranger to the Decree and which comes to be noted by the Executing Court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist in only under Order 21, Rule 97, sub-rule (1) and he cannot bypass such obstruction and insist on re-issuance of warrant for possession under Order 21, Rule 35 with the help of police force, as that course W.P.No.39735/2016 12 would amount to bypassing and circumventing the procedure laid down under Order 21, Rule 97 in connection with removal of obstruction of purported strangers to the Decree. Once such an obstruction is on the record of the Executing Court it is difficult to appreciate how the Executing Court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order 21, Rule 99, CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the Decree who claims any independent right, title or interest in the decretal property is to go by Order 21, Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the Decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order 21, Rule 99. Order 21, Rule 97 deals with a stage which is prior to the actual execution of the Decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order 21, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the Decree are clearly contemplated by the aforesaid scheme of Order 21 and it is not as if that such a stranger to the Decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order 21, Rule 97 in this connection by taking the view that only remedy of such stranger to the Decree lies under Order 21, Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of W.P.No.39735/2016 13 possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist, who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the Decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard or merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the Executing Court, therefore, would fail also on the ground of non- compliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order 21, Rule 97, CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree- holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the Executing Court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate Suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 and 103 would remain a complete code and the sole remedy for the parties concerned to have their grievances once and for all finally resolved in execution proceedings themselves."
ii) Kayalvizhi vs. S.Parthasarathy and another 2008 [SCC Online Madras 504], more particularly para Nos.12, 24 and 25, "12. As contended by the learned counsel for the first Respondent, under Order 21, Rule 106, C.P.C., there is a provision for setting aside the ex parte order passed against any party, however, the revision petitioner did not file any petition before the W.P.No.39735/2016 14 Court below for setting aside the impugned order passed by the Court below. Only with a view to protract the proceedings, preferred this Civil Revision Petition.
24. As contended by the learned counsel appearing for the first Respondent, this Court has to consider the bona fide of the revision petitioner. Based on the conduct of the parties, bona fide can be decided by any court. The revision petitioner filed the Suit only in the year 2006, though the first respondent / decree- holder had obtained a contested decree on 27.11.2001 and got the sale deed executed, pursuant to the order of the Court on 28.01.2004. In the affidavit filed by the first respondent / decree-holder, it has been clearly stated that the schedule of property is the self-acquired property of the second respondent / judgment-debtor and the second Respondent had entered into the registered agreement on 15.05.1998 to sell the property in favour of the first respondent / decree-holder. After contest, the Decree was passed and that the revision petitioner and the second respondent / judgment debtor are living as Husband and wife under one roof. In the affidavit, the first respondent / decree- holder has averred that the revision petitioner was fully aware of the sale agreement between himself and the second respondent / judgment-debtor, the Suit that was decreed, after contest and also the sale deed executed in favour of the first respondent / decree-holder. However, the revision petitioner has not chosen to file any counter before the Court below, denying the averments. She has not filed any supporting document to show that the property was the joint family property of the second respondent / judgment-debtor and his sons. Admittedly, there is no decree of divorce between the revision petitioner and the second respondent / judgment-debtor. The averments of the first respondent / decree-holder that the revision petitioner and the second respondent / judgment-debtor are living under one roof is also not controverted.
25. As contended by the learned counsel for the first respondent / decree-holder, there is no necessity for the sons of the revision petitioner and the judgment-debtor to be represented by their mother, the revision petitioner in the Suit in O.S.No.192 of 2006, when father is available. Within 38 days from the date of filing of the Suit, on 27.09.2006, the revision petitioner herein W.P.No.39735/2016 15 obtained an ex-parte decree against her Husband, the judgment-debtor. In the copy of the Decree, the share of the Plaintiff's therein has been stated as 2/3rd, but in the obstruction petition that had been changed as ¾ by the revision petitioner for the reasons best known to the revision petitioner. The aforesaid circumstances show that there is no bona fide grounds for filing the petition by the revision petitioner, even she has not arrayed the minor children of the revision petitioner and he judgment-debtor as parties in the obstruction Petition.
Similarly, the first respondent / decree-holder was not arrayed as Defendant in the Suit filed by the revision petitioner. "
iii) Silverline Forum Pvt. Ltd., vs. Rajiv Trust and another [(1998) 3 SCC 723,] more particularly para No.14.
"14. It is clear that the executing Court can decide whether the resistor or obstructor is a person bound by the Decree and he refused to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. The Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to adduce evidence for such determination if the Court deems it necessary. "
14.5. Based on the above, Sri.Vyshak learned counsel submits that the Execution Court has rightly rejected the application filed by the Petitioner and the present writ petition also being devoid of merit is also to be dismissed.
W.P.No.39735/201616
15. In rejoinder, Sri. Ashok K.L., learned counsel for the Petitioner, submits that 15.1. The Suit in O.S.No.837/2014 was filed only to usurp the property. The Petitioner and Defendant in the said Suit were not living together, and Plaintiff, who is the sister of Defendant, is trying to usurp the property to the detriment of the Petitioner by misusing the situation or relationship between the parties.
15.2. Subsequent to the impugned order, an application under Order XXI Rule 29 has been filed seeking for stay of the execution of Decree pending disposal of the G&WC No.35/2015, which is yet to be considered by the Execution Court.
16. Heard Sri.Ashok K.L., learned counsel for the Petitioner, Sri.Vyshak, learned counsel for the Respondent. W.P.No.39735/2016 17
17. A very innovative and novel manner of obstruction of the execution decree has been resorted to by the Petitioner, wherein the Petitioner claims that the judgment debtor husband is a person who is mentally unsound and therefore, he could not appear and contest the Suit in O.S.No.837/2014, wherein the Decree has passed and since she has obtained an order appointing her as a guardian of her unsound Husband, she be permitted to obstruct the Decree which has been passed.
18. Shockingly, a perusal of the cause title would indicate that the Petitioner is residing in a different address than her Husband - respondent No.2. This Court repeatedly enquired with the learned counsel for the Petitioner, if that is so, the learned counsel stated that the petitioner and respondent No.2 - husband were not residing together and that they were residing separately on account of differences between them.
19. If that be so, there is gross violation of the order passed in G&WC No.35/2015, wherein the Petitioner was appointed W.P.No.39735/2016 18 allegedly as a guardian of an unsound husband. The Petitioner who claimed to be taking care of her unsound Husband, sought to be appointed as his guardian. She was so appointed with the condition that the Petitioner would take care of the Husband, all his basic needs and would not act adverse to the interest of the Husband. The facts leading upto the present petition establish that she has grossly violated the same. She is not taking care of the health and basic needs of the Husband since she is not residing with the allegedly unsound Husband. Furthermore, these proceedings have been filed against the Husband who is arraigned as the 2nd Respondent.
20. On merits, it is seen that a legal notice dated 07.07.2014 has been issued by Plaintiff to Defendant, which was replied to by Plaintiff through a legal reply notice. If that were to be so, the Defendant was in a sound state of mind to engage the services of a Lawyer, reply to a legal notice and contend therein that there was a partition deed, which W.P.No.39735/2016 19 was being affected and that he was residing in the property.
21. If that be so and that reply notice not having been denied by the Petitioner, the said reply notice would be binding both on the Petitioner and the Defendant, which has been rightly taken into consideration by the Trial Court while dealing in O.S.No.837/2014 and decreeing it.
22. The application in I.A.No.2/2015 has been filed in Ex.No.347/2015 under Order XXI Rules 97 and 101 of CPC. Order XXI Rules 97 and 101 of CPC, reads as under:
"97. Resistance or obstruction to possession of immovable property.-(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
(2) Where any application is made under sub-
rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
101. Question to be determined.-All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the applicant, and not by a separate suit and for W.P.No.39735/2016 20 this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions."
23. Order XXI Rule 97 provides for a decree holder to file an application contending that a third party is objecting to the execution of a decree and seek for necessary orders from the executing Court. In the present case, the obstructor has filed an application under Order XXI Rule 97, who is not eligible to exercise any rights under the said provison.
24. Even if for the sake of arguments it were to be accepted, that an obstructor should file an application under Order XXI Rule 97. The obstructor could not be a party to a decree but has to be a third party.
25. In the present case, the Petitioner claims to be guardian of the judgment debtor. Thus, the Petitioner cannot be said to be a third party to the proceedings so as not to be bound by any decree which has been passed against the Judgement Debtor - Husband. In such a situation, Order XXI Rule 97 would not come to the rescue of the Petitioner. If at all the Petitioner is aggrieved by the same, W.P.No.39735/2016 21 the Petitioner is required to file an appeal challenging the judgment and Decree passed in O.S.No.837/2014, since she claims to represent the Judgement Debtor as his guardian.
26. The contention of Sri.Ashok K.L., learned counsel for the Petitioner is that the Suit in O.S.No.180/2017, which was subsequently filed for partition, therefore, the proceedings cannot go on and the Petitioner be permitted to obstruct the execution of the Decree passed in O.S.No.837/2014. The mere filing of such a suit cannot obviate or frustrate a judgment and Decree validly passed in O.S.No.837/2014. Moreso, when the judgment and Decree is not challenged in the said Suit nor is their any challenge offered to the said judgment and Decree by way of an appeal.
27. Under such circumstances, even this contention of the learned counsel for the Petitioner is liable to be rejected.
28. As aforesaid, this appears to be a novel method of trying to frustrate a valid judgment and Decree which has been W.P.No.39735/2016 22 passed. The manner in which a decree passed on 26.02.2015 has been put on hold till now i.e., 2022 falls within the observations made by the Apex Court in Rahul Shah vs Jinendrakumar Gandhi reported in (2021) 6 CC 418, requiring a re-look of the provisions of Order XXI, I schedule to the CPC relating to the execution of a decree.
29. Considering the manner in which the proceedings have been stalled by the Petitioner and having already held that there is gross abuse of the process of the Court by filing such applications. More so when the Petitioner and the second Respondent under whom the petitioner claims are admittedly not residing together, I deem it fit to award cost to the first Respondent herein which is quantified at Rs.5,000/-. The Petitioner shall make payment of the said amount, within three months of this order.
The writ petition is dismissed accordingly.
Sd/-
JUDGE KG