Karnataka High Court
T R Krishnamurthy vs B A Hanumaiah on 7 November, 2013
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7th DAY OF NOVEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
R.F.A.No.1374 OF 2013
BETWEEN:
T.R.Krishnamurthy,
S/o.Late T.Ramarao,
Aged about 63 years,
Residing at Municipal No.18/6,
2nd Anjaneya Temple Street,
Sheshadripuram,
Bangalore - 560 020. ... Appellant
(By Sri D.Manjunath, Advocate)
AND:
1. B.A.Hanumaiah,
Since dead by LRs.
1(a) Savithramma,
W/o.Late B.A.Hanumaiah,
Aged about 65 years.
1(b) Suresh Gowda,
S/o.Late B.A.Hanumaiah,
Aged about 35 years.
2
Both are R/at No.917,
III 'C' Cross, Basappa Garden,
Malleshwaram,
Bangalore - 560 003.
2. Pankajalaxmi Mahila Samaja,
No.19/1, Anjaneya Block,
Sheshadripuram,
Bangalore - 560 020,
Represented by its Secretary,
Smt.Choodamani,
Aged about 66 years,
No.1/1, Anjaneya Block,
Sheshadripuram,
Bangalore - 560 020. .. Respondents
(By Sri G.L.Vishwanath, Advocate for R1(a) & (b):
Sri A.L.Premkumar, Advocate for R2)
This RFA is filed under Section 96 r/w. Order 41
Rule 1 of CPC, against the order dated 31.07.2013,
passed in Ex.2187/2012, on the file of the IX Additional
City Civil and Sessions Judge, Bangalore, rejecting the
application filed under Order 21 Rule 97 r/w. Section
151 of CPC and etc.
This RFA, coming on for admission, this day, the
Court delivered the following:
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JUDGMENT
This appeal is filed by the obstructor aggrieved by the order, dated 31.07.2013 passed by the Execution Court (Court of the IX Additional City Civil and Sessions Judge, Bangalore) in Execution No.2187/2012, rejecting the appellant's application filed under Order 21 Rule 97 r/w. Section 151 of CPC.
2. Sri D.Manjunath, the learned counsel for the appellant submits that the objector's property and the first respondent's property are entirely different and distinct. He further submits that the objector's house-property is carved out of the land at Sy.No.11, whereas the suit schedule property belonging to the first respondent is carved out of the land at Sy.No.10. He submits that the objector's property is on the western side of the suit schedule property.
3. He submits that the appellant is a third party. Without even making him a party, it cannot be said that he has no right in the suit schedule property. The decree 4 obtained by the first respondent against the second respondent cannot be executed in respect of the property, a portion of which belongs to the appellant. He submits that the appellant's site bearing No.19/1 is carved out of the land at Sy.No.11/6.
4. He submits that the boundaries are not clearly demarcated and that there is lot of confusion regarding the identity of the suit schedule property. He submits that the second Court Commissioner's report has only made the situation more confusing. He read out the relevant portion from the cross-examination of the second Court Commissioner, i.e., CW1. He submits that the second Court Commissioner has admitted that the site Nos. 5 and 6 are shown based on the demarcation found in the suit schedule and on the statement made by the first respondent. He submits that the property shown as Part II belongs to the obstructor i.e., the appellant.
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5. Sri G.L.Vishwanath, the learned counsel for the respondent Nos.1 (a) and (b) submits that the appellant's vendor appears to have sold more extent of the land than what was actually gifted to her. He brings to my notice that in the gift deed, it is shown that six guntas of land at Sy. No.11/6 are given to her. As one gunta of land is equal to 1,089 sq.ft., six guntas of land aggregate to 6,534 sq.ft. The sketch filed by the appellant's advocate discloses that the property in question measures 110" from East to West and 95.6" and 70" from North to South. If the description of the measurement is taken on its face value, it measures 9,130 sq.ft., which was never gifted to the appellant's vendor Choodamani. If the donee Choodamani had sold more land than what was given to her, her purchaser cannot demand that the shortfall be made good from out of the property belonging to the first respondent.
6. He submits that in the first written statement, the second respondent claims that it is in possession of Site 6 No.19/1 formed out of the land at Sy.No.11/6 and that the first respondents claim is in respect of the land at Sy.No.10. However in the additional written statement, the second respondent has taken a conflicting plea denying the very existence of site No.6 carved out of the land at Sy.No.10.
7. The learned counsel submits that the Trial Court in O.S.No.6527/1980 and this Court in R.F.A.No.1312/2002 have already negatived the stand of the second respondent that there is no site No.6. A clear finding is delivered based on the evidence, more particularly the second Court Commissioner's report that the first respondent is the owner of the site bearing No.6 carved out of the land at Sy.No.10. The learned counsel submits that no documents, whatsoever, are produced to show that the sub-division has ever taken place in the land at Sy.No.11. He would therefore deny the existence of the land at Sy.No.11/6 and further site No.19/1 carved out of the same.
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8. He submits that the first respondent instituted the suit on 07.07.1979 whereas the sale deed, on the basis of which the appellant is advancing his claim is executed on 10.10.1986. He submits if any portion of the suit schedule property is sold by Choodamani to a third party, it is hit by the doctrine of lis-pendens. He read out the provisions contained in Section 52 of the Transfer of Property Act, 1882 which is extracted hereinbelow:
"52. Transfer of property pending suit relating thereto.- During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir] Government or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.8
Explanation : For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
9. He brings to my notice the fact that the second respondent has not filed any objections to the appellant's obstructing application. He submits that the appellant is set up by the respondent No.2. He submits that the first respondent - decree holder is a widow and a senior citizen and that the fruits of the decree are being denied on one or the other ground for decades.
10. Sri Vishwanath relies on the Apex Court's judgment in the case of SILVERLINE FORUM PVT. LTD. vs. RAJIV 9 TRUST AND ANOTHER reported in AIR 1998 SC 1754. Paras 10 and 12-13 relied upon by him read as follows:
"10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under rule 97 or rule 99" shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the resistance or obstruction made by him to the execution of the decree. No doubt if the resistance was made by a transferee pendente lite of the judgment debtor, the scope of the adjudication would be shrunk to the limited question whether he is such transferee and on a finding in the affirmative regarding that point the execution court has to hold that he has no right to resist in view of the clear language contained in Rule 102. Exclusion of such a transferee from raising further contentions is based on the salutary 10 principle adumbrated in Section 52 of the Transfer of property Act.
When a decree-holder complains of resistance to the execution of a decree it is incumbent on the execution court to adjudicate upon it. But while making adjudication, the Court is obliged to determine only such question as may be arising between the parties to a proceeding on such complaint and that such questions must be relevant to the adjudication of the complaint.
The words "all questions arising between the parties to a proceeding on an application under Rule 97" would envelop only such questions as would legally arise for determination between those parties. In other words, the court is not obliged to determine a question merely because the resistor raised it. The questions which executing court is obliged to determine under rule 101, must possess two adjuncts. First is that such questions should have legally arisen between the parties, and the second is, such questions must be relevant for consideration and determination between the parties, e.g. if the obstructor admits that he is a transferee pendente lite it is not necessary to 11 determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third party, who questions the validity of a transfer made by a decree- holder to an assignee, cannot claim that the question regarding its validity should be decided during execution proceedings. Hence, it is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. In the adjudication process envisaged in Order 21 Rule 97(2) of the Code, execution court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section.
.................
12-13. It is clear that 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 12 enquiry or collection of evidence. 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."
11. Nextly, the learned counsel sought to draw support from the Apex Court's judgment in the case of USHA SINHA vs. DINA RAM AND OTHERS reported in AIR 2008 SC 1997 to advance the submission that the pendente lite purchaser has no right to put up any resistance or obstruction in the execution proceedings. The relevant paragraphs of the said judgment are extracted hereinbelow:
"18. It is thus settled law that a purchaser of suit property during the pendency of litigation has no right to resist or obstruct execution of decree passed by a competent Court. The doctrine of "lis pendens" prohibits a party from dealing with the property which is the subject matter of suit. "Lis pendens" itself is treated as constructive notice to a purchaser that he is bound by a decree to be entered in the pending suit. Rule 102, therefore, 13 clarifies that there should not be resistance or obstruction by a transferee pendente lite. It declares that if the resistance is caused or obstruction is offered by a transferee pendente lite of the judgment debtor, he cannot seek benefit of Rule 98 or 100 of Order XXI.
............
21. We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum. In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated."
12. Sri A.L.Prem Kumar, the learned counsel for the respondent No.2 submits that it is not correct to state that six 14 guntas were gifted to Choodamani. The property gifted to her measures 696.06 sq.metres.
13. Nextly, Sri Premkumar contents that no sketch is available along with the Commissioner's report for executing the decree. Therefore, it is necessary to hold an enquiry for the purpose of demarcating the properties and more particularly the appellant - obstructor's side of the properties.
14. The submissions of the learned counsel have received my thoughtful consideration.
15. The question that falls for my consideration is whether the Execution Court is justified in rejecting the obstruction application filed by the appellant under Order 21 Rule 97 r/w. 151 CPC?
16. For examining this question, the brief advertance to the facts of the case is necessary. The Court of V Addl. City Civil Judge, Bangalore by its judgment, dated 27.11.2002 decreed the first respondent's suit (OS.No.6527/1980) against 15 the second respondent. The operative portion of the said judgment reads as follows:
" The suit of the plaintiff is decreed as follows:
It is ordered and decreed that the defendant is hereby directed by mandatory injunction to remove the construction put up on the suit schedule property as pointed out by the second court commissioner (CW.1) in the sketch prepared by him and to put the plaintiff in vacant possession of the suit schedule property. If the defendant fails to do so, the plaintiff is at liberty to get it pulled down at the cost of the defendant and the same may be recovered from the defendant. It is further ordered and decreed that the defendant is hereby restrained by permanent injunction from interfering with the plaintiff's peaceful possession and enjoyment of vacant portion of the suit schedule property. Under the circumstances of the case, there will be no order as to costs."
17. Aggrieved by the aforesaid judgment, the second respondent defendant filed RFA No.1312/2002. This Court by its judgment, dated 13.07.2012, dismissed the appeal by 16 confirming the Trial Court's judgment. This Court observed "On an overall consideration of the pleadings, evidence and the documents, it can be said that the plaintiff would succeed on the relative strength of the case, given the difficult proposition of locating, identifying and defining the extent of properties as claimed by both the parties."
18. The second respondent sought the review of the judgment passed in RFA No.1312/2002. The R.P. No.860/2012 was rejected by this Court by its order, dated 16.01.2013. Thereafter, the first respondent - decree holder filed Execution Petition No.2187/2012. On the issuance of the delivery warrant on 30.03.2013, the appellant filed the I.A. invoking Order 21 Rule 97 with the prayer to the Court that the judgment and decree passed in O.S.No.6527/1980 be held as not binding on him in respect of the application schedule property. The second respondent - judgment debtor did not file the objections to the said I.A. On considering the objections of the first respondent - decree-holder, the Execution Court rejected the said I.A. 17
19. My perusal of the impugned order reveals that what has weighed with the Execution Court in rejecting the appellant's I.A. is that he is a pendente lite purchaser. It is the appellant's case that he has purchased his property in question from one Smt.Choodamani, who runs the second respondent Society. The objector claims to be the recorded owner of the site bearing 19/1. Both the Trial Court and this Court have noticed the discrepancy and inconsistency in the version of the second respondent - defendant. The gift deed executed in favour of the second respondent - defendant's Secretary Smt.Choodamani shows that six guntas of land were gifted to her. She sold the following extents of land to different parties:
(a) Krishna Murthy (the appellant - obstructor) under the sale deed, dated 10.10.1986, measuring 2800 sq.ft.
(b) Anjanappa under the sale deed, dated 03.02.1987 measuring 1880 sq.ft.18
(c) Channappa under the sale deed, dated 03.02.1987 measuring 1540 sq.ft.
20. After effecting all these sale transactions, the second respondent - judgment-debtor claims to be in possession of 2700 sq.ft. If these four figures are totalled, it comes to 8920 sq.ft. This aspect of the matter has also been noticed and considered by this Court in RFA No.1312/2002. The second respondent or its Secretary Smt.Choodamani cannot claim more than what was gifted to her.
21. The appellant claims to have purchased the site bearing 19/1 from Smt.Choodamani. It is the same Smt.Choodamani who is the Secretary of the second respondent Society. It is also not in dispute that the first respondent instituted the suit on 07.07.1979 and the appellant purchased the portion of the site bearing 19/1 during the pendency of the suit on 10.10.1986. As the appellant is a pendente lite transferee, he does not have the right to obstruct the execution proceedings, as Rules 98 and 19 100 of Order 21 of CPC are made non-applicable for such pendente lite transferees. Rule 102 reads as follows:
"102. Rules not applicable to transferee pendete lite - Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment-debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person."
22. The perusal of the afore-extracted provisions reveals that a third party who has purchased the property from the judgment-debtor during the suit proceedings has no independent right to object to the execution of the decree. The resistance by such transferee pendente lite is not maintainable. The Executing Court need not entertain the application for the purpose of whether the third party objector was unaware of the litigation between the plaintiffs and the defendants. In taking this view, I am fortified by the Apex 20 Court's judgment in the case of USHA SINHA (supra). Paras 12 and 13 of the said decision is extracted hereinbelow:
"12. Bare reading of the rule makes it clear that it is based on justice, equity and good conscience. A transferee from a judgment debtor is presumed to be aware of the proceedings before a Court of law. He should be careful before he purchases the property which is the subject matter of litigation. It recognizes the doctrine of lis pendens recognized by Section 52 of the Transfer of Property Act, 1882. Rule 102 of Order XXI of the Code thus takes into account the ground reality and refuses to extend helping hand to purchasers of property in respect of which litigation is pending. If unfair, inequitable or undeserved protection is afforded to a transferee pendente lite, a decree holder will never be able to realize the fruits of his decree. Every time the decree holder seeks a direction from a Court to execute the decree, the judgment debtor or his transferee will transfer the property and the new transferee will offer resistance or cause obstruction. To avoid such a situation, the rule has been enacted.21
13. Before one and half century, in Bellamy v. Sabine, (1857) 1 DG & J 566 : 44 ER 847, Lord Cranwoth, L.C. proclaimed that where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind require that the decision of the Court in the suit shall be binding not only on the litigating parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end."
23. The submission urged on behalf of the appellant that his obstruction-application calls for an enquiry, as his site bearing No.19/1 is not a part of site No.6 looks persuasive at the first blush, but then in view of the findings of the Trial Court that the first respondent is the owner of site No.6 carved out of the land at Sy.No.10 and its upholding by this Court in R.F.A.No.1312/2002, the enquiry by the Execution Court is not called for.
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24. Prima facie, as mentioned supra, Smt.Choodamani appears to have sold more extent of land than what was actually gifted to her. Further, the schedule in the sale deed, dated 10.10.1986 executed by Choodamani in favour of the appellant - objector only shows that he has purchased 80 feet East to West and 35 feet North to South out of the property comprising Municipal Corporation No.19/1. The total extent of the property which bears Municipal Corporation No.19/1 is not mentioned in the sale deed. As the exact extent of the property bearing Municipal Corporation No.19/1 is not shown in the sale deed executed in favour of the appellant, I find it hard to act on the ipse-dixit of the appellant. While the appellant is calling into question the identity of the first respondent's suit schedule property, the appellant himself has not produced any clinching documents to show the identity of his property bearing Municipal Corporation No.19/1.
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25. The confusion is also on account of the non- conversion of the agricultural land for the non-agricultural purpose. No party has produced any layout plan which would have shown the boundary and schedule of the sites. Just because the second Court Commissioner has made some non-committal responses in the course of the cross- examination, an inference cannot be drawn that the suit schedule property of the first respondent and the application schedule property of the appellant are distinct.
26. If the appellant wants to establish that two properties are different, he may have to file a separate suit, if it is open to him to do so in law.
27. An important aspect of the matter which cannot be glossed over is that the second respondent has not made any averment either in the plaint or in the appeal memorandum that a portion of the suit schedule property is sold to or is in the possession of the appellant. As the first respondent - plaintiff and the second respondent - defendant have fought 24 the legal battle bitterly, it cannot be said that they have acted collusively to defeat the interest of the appellant. The Calcutta High Court in the case of MANOHAR KUMAR KANKARIA AND ANOTHER vs. SK.MD.SHAWKAT AND OTHERS reported in AIR 2006 Calcutta 256, has this to say in para 9, which is extracted hereinbelow:
"9. ................. It appears from the decree itself and the records that the application under Chapter XIIIA was seriously contested and all possible point were taken and dealt with by the learned Judge by passing decree. Moreover an appeal was preferred against this judgment and decree and this decree sustained upon hearing of appeal and dismissal of the same. On the face of the aforesaid proven fact how it can be said that decree was obtained in collusion with the defendants and fraudulently.................."
28. For all the aforesaid reasons, I dismiss this appeal. No order as to costs.
Sd/-
JUDGE Cm/-