Karnataka High Court
Hazirabee D/O Kulsumbee vs Bheemashanker S/O Chandrashekhar ... on 28 February, 2014
1
IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
DATED THIS THE 28TH DAY OF FEBRUARY 2014
BEFORE:
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
REGULAR FIRST APPEAL NO. 1626 OF 2005
C/W
REGULAR FIRST APPEAL NO. 1627 OF 2005
REGULAR FIRST APPEAL NO. 1626 OF 2005
BETWEEN:
Smt. Hazirabee,
D/o. Kulsumbee,
Aged about 75 years,
Residing at House No.54/E/P/172,
Lohia Nagar,
Pune-411 042.
GPA holder Syed Razak Ali
S/o. Syed Sadat Ali.
... Appellant
[By Sri Amaresh S.Roja, Advocate]
AND:
1. Bheemashanker,
Son of Chandrashekhar Bilgundi,
Aged about 52 years,
Residing at Sedam Road,
Gulbarga 585101.
2
2. Vijaykumar
S/o Rajashekar,
Aged about 50 years,
Residing at Sedam Road,
Gulbarga 585101.
... Respondents
[By Sri Santosh S.Nagarale, Advocate for R-1;
Sri Subhash Chandra Kinagi, Advocate for R-2]
This appeal is filed U/S 96 of the CPC against
the order dated 23.7.2005 passed in Misc.No.68/95 on
the file of the II Addl. Civil Judge (Sr.Dn),
Gulbarga, allowing the petition not to execute the
delivery warrant issued in respect of property
bearing No.8-1304/1 and 8-1304 situated at Gunj Area,
Main road, Gulbarga.
REGULAR FIRST APPEAL NO. 1627 OF 2005
BETWEEN:
Smt. Hazirabee,
D/o. Kulsumbee,
Aged about 75 years,
Residing at House No.54/E/P/172,
Lohia Nagar,
Pune-411 042.
GPA holder Syed Razak Ali
S/o. Syed Sadat Ali.
... Appellant
[By Sri Amaresh S.Roja, Advocate]
AND:
T.S.R.Anjeneyuly,
Since dead by LR's,
1. T.Surya Prabhu,
S/o TS.R.Anjaneyuly,
3
Aged about 63 years,
Residing at Nehru Gunj,
Gulbarga.
2. T.S.Prakash Rao,
S/o T.S.R.Anjeneyuly,
Aged about 55 years,
Residing at Nehru Gunj,
Gulbarga.
3. T.Jaya Prakash Rao,
S/o T.S.R.Anjaneyuly,
Aged about 51 years,
Residing at Nehru Gunj,
Gulbarga.
... Respondents
[By Sri Santosh S.Nagarale, Advocate for R-1;
Sri Subhash Chandra Kinagi, Advocate for R-2]
This appeal is filed U/S 96 of the CPC against
the order dated 23.7.2005 passed in Misc.No.36/95 on
the file of the II Addl. Civil Judge (Sr.Dn),
Gulbarga, allowing the petition not to proceed with
warrant of delivery of possession issued in respect
of property bearing No.8-1302/A and 8/1302/B situated
at Nehru Gunj, Gulbarga.
These appeals coming for Orders this day, the
Court delivered the following:
JUDGMENT
Sri Ashok Kinagi, Advocate is directed to take notice for respondents in RFA No. 1627/2005.
2. Though the matters are posted today in the list of orders, with the consent of the counsel for 4 both the parties, they are taken up for final disposal.
3. The facts reveal that the appellant in both the appeals is J.D.No.14 in FDP No. 8/1978 The Trial Court had issued delivery warrant in favour of the decree holder to take the possession of the property bearing No.8-1304 and 8-1304/1 of Gunj area, Main Road, Gulbarga. The respondents in the main appeal submitted an application under the provisions of Order XXI Rule 97 of Code of Civil Procedure resisting the execution and requesting not to execute the delivery warrant in respect of aforesaid properties on the ground that they have an independent title to the said properties. Their application was registered in Miscellaneous No.68/1995 and under the impugned order the application filed under Order XXI Rule 97 of Code of Civil Procedure was allowed refusing to execute the warrant. Aggrieved by the said order, the present appeals are filed. At the same time the respondents 5 in the connected matter had also filed the application resisting the execution of the delivery warrant issued in relation to the property bearing No. 8-1302/A and 8-1302/B of the same area and their application was also allowed. Aggrieved by the said order J.D.No.14 has preferred the appeal in the connected matter.
4. Heard the learned counsel for both the parties.
5. Learned counsel for the appellant submits that the respondents were third parties and their application was not maintainable under order XXI Rule 97 of Code of Civil Procedure for the reason that they were neither decree holders or purchasers of the properties sold in the execution of a decree and application by a person who is not a party to the proceedings is not maintainable. The application was resisted. He submits that except this contention there are no other contentions raised for the decision by this Court.
6
6. On this aspect of the matter the learned counsel for the respondents submit that in case if there is obstruction to the possession of third person, an application could be maintained under order XXI Rule 97 of Code of Civil Procedure. Therefore, he submits that orders of the Court below are in accordance with law.
7. The provisions of Order XXI Rule 97 of Code of Civil Procedure is extracted hereunder for the sake of convenience.
"R.97.(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 in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.
7(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.
8. Under the aforesaid provision the holder of a decree for possession of immovable property or the purchasers of such property in the execution of the decree is resisted or obstructed by any person obtaining possession of the property an application can be filed to the Court complaining such resistance. Three categories of persons included in the aforesaid provision; (1) Holder of a decree for possession of immovable property (2) the purchaser of any such property sold in execution of the decree and (3) a person who has obstructed, in case amongst the aforesaid three persons anyone who is obstructed, has right to file an application to the Court complaining such resistance or obstruction. If the aforesaid provision is looked into in the context of the facts 8 on hand, the respondents were in possession of the property as they were neither decree holder nor the persons who purchased the property in the decree. They fall within the third category i.e., the persons whose possession is obstructed. Therefore, the respondents also fall within the purview of the provisions of Order XXI Rule 97 of Code of Civil Procedure.
9. On this aspect of the matter the learned counsel for the respondents has placed reliance on a decision of Apex Court reported in AIR 2004 Supreme Court 511 (Ashan (Ashan Devi and another v. Phulwasi Devi and others), in para 21 the Apex Court has referred to the provisions of Order XXI Rule 97 and 99 has observed that the provisions is to be widely and liberally construed to enable the executing Court to adjudicate inter se claims of the decree holder and the third parties in the execution proceedings to avoid prolonged of litigation by driving parties to 9 file independent suits. Interpreting the Order XXI Rule 97, the Apex Court held in para 25 as under;
"25. In interpreting the provisions of O.XXI R.97 of the code and the other provisions in the said order, the aims and objects for introducing amendment to the Code cannot be lost sight of. Under the unamended Code, third parties adversely affected or dispossessed from the property involved, were required to file independent suits for claiming title and possession. The Legislature purposely amended provisions in O.XXI to enable the third parties to seek adjudication of their rights in execution proceedings themselves with a view to curtail the prolongation of litigation and arrest delay caused in execution of decrees. See Bhag Mal v. Ch.Prabhu Ram (1985 (1) SCC
61)."10
10. So scrutiny of the provisions of Order XXI Rule 97 of Code of Civil Procedure and principles laid down in the decision referred to supra, the application of the respondents filed under Order XXI Rule 97 of Code of Civil Procedure is very much maintainable and the contention taken up by the appellant in this regard cannot be accepted. As the appellants have not made any submission in relation to any other contentions, I do not find any error or irregularity in the impugned order.
Consequently, the appeals fail and they are accordingly dismissed.
Sd/-
JUDGE *MK