Karnataka High Court
Smt. B.K. Ambujakshi vs M. Hanumanthappa Dead By Lrs on 18 April, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION No.7967/2015 (GM-CPC)
BETWEEN :
1. SMT. B.K.AMBUJAKSHI
W/O H.MUNIRAJU
AGED ABOUT 48 YEARS,
2. KUM B.M. SHILPA
D/O H. MUNIRAJU,
AGED ABOUT 27 YEARS,
3. KUM. B.M. RAKSHA
D/O H. MUNIRAJU,
AGED ABOUT 26 YEARS,
4. MASTER B.M. DEEPAK
S/O H. MUNIRAJU,
AGED ABOUT 24 YEARS,
ALL ARE RESIDING AT NO. 46,
GANDHI BAZAAR MAIN ROAD,
BASAVANAGUDI,
BENGALURU 560 004. ... PETITIONERS
(BY SRI N.BAYYA REDDY, ADVOCATE)
AND :
1. M. HANUMANTHAPPA
DEAD BY LRS
(a.) SMT. YASHODAMMA
2
W/O LATE HANUMANTHAPPA,
DEAD BY HER LRS.,
R1(b) MOHAN
S/O LATE HANUMANTHAPPA,
AGED ABOUT 40 YEARS,
RESIDING AT No.10,
6TH "C" CROSS,
ANJANEYA TEMPLE STREET,
VASANTHANAGARA,
BENGALURU 560 052.
PETITIONERS 1 TO 4 ARE ALSO
REPRESENTED AS LRs., OF
1(a) SMT. YASHODAMMA
2. C. NAGARAJ
S/O CHANNAPPA,
R/AT. 269, CHIKKATHAYAPPA
STREET, VASANTHANAGAR,
BENGALURU - 560 052
3. CORPORATION OF THE CITY
BENGALURU
BY ITS COMMISSIONER,
CORPORATION OFFICE,
BENGALURU -560 002
4. SRI CHANDRAPPA (R4 AND R5
S/O NOT KNOWN, ARE DELETED
VIDE ORDER
5. SRI JAYABALAN DT.10.07.2015)
S/O NOT KNOWN,
BOTH R4 AND R5 RESIDING AT NO.9,
6TH CROSS, ANJANEYA TEMPLE STREET,
VASANTHNAGAR, BANGALORE -560052
... RESPONDENTS
(BY SRI DINESH GAONKAR, ADVOCATE FOR R2
NOTICE TO R3 IS DISPENSED WITH VIDE ORDER DATED
10.07.2015
SRI SHASHIDHAR, ADVOCATE FOR R1(a)(1))
3
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED 13.01.2015 PASSED BY THE
XVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE IN EX.No.1742/2007 AS PER ANNEXURE-A
DECLINING TO IMPLEAD THE PETITIONERS AND
DIRECTING THEM TO A SEPARATE PROCEEDING AND
ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard. Perused the records.
2. Petitioners filed an application under Order 1 Rule 10 of the Civil Procedure Code to get themselves impleaded in Execution petition No.1742/2007 contending inter alia that original decree holder, Sri M. Hanumanthappa, is the father-in-law of the first applicant and grandfather of applicant Nos.2 to 4 and they being LR's of deceased Hanumanthappa, they had not been brought on record by remaining children of 4 Hanumanthappa and they have a right in the SSP and they are necessary and proper parties to the proceedings. This application came to be opposed by other legal representatives of the decree holder, namely wife and son of Hanumanthappa, on the ground that applicants have been instigated by the judgment debtor to stall the execution proceedings and they are not necessary and proper parties to the present proceedings. Executing Court considered the objections and dismissed the application on the ground that rights of the applicants vis a vis the legal representatives of the decree holder cannot be decided in these proceedings. Hence, the present writ petition has been filed.
3. It is the contention of Mr. Bayya Reddy, learned counsel appearing for petitioners, that trial Court committed a serious error in rejecting the application filed by the petitioners that too after having opined that there was no dispute that applicants are the 5 legal heirs of Muniraju and said Muniraju being none other than the original decree holder - plaintiff - Sri.Hanumanthappa and, as such trial court ought to have permitted them to be brought on record.
4. Per contra, Sri Shashidhar, learned counsel appearing for respondent No.1(b), would support the impugned order passed by the Executing Court and contends that respondent No.1(b) would have no objection for the applicants working out their remedy in the suit, which had been filed by them in O.S. No.51/1983 for partition and separate possession and as such, the estate of the deceased Hanumanthappa being represented in the present Execution petition, they would not be necessary and proper parties. Hence, he prays for rejection of writ petition.
5. Having heard the learned Advocates appearing for parties and on perusal of the records it would disclose that Sri Hanumanthappa had filed a suit OS.No.51/1983 against one Sri C.Nagaraj and 6 Corporation of the City of Bangalore for removal of unauthorized construction put up in the suit schedule property and for delivery of possession from the first defendant therein. Suit came to be decreed on 26.08.2000 and first appeal filed by the judgment debtor in RFA No.990/2000 came to be dismissed on 02.07.2007 and S.L.P. No.18359/2007 filed challenging the order of this court came to be dismissed on 08.10.2007. This judgment and decree passed by the trial Court in O.S. No.51/1983 on 26.08.2000 has became final. After the judgment and decree came to be passed by the trial Court and before appeal could be filed, original plaintiff Sri.Hanumanthappa expired and as such, the first judgment debtor had arrayed wife of late Sri.Hanumanthappa and present respondent No.1(b) as legal representatives of deceased Sri.Hanumanthappa in RFA No.990/2000, which as observed hereinabove, came to be dismissed and affirmed in S.L.P also. Said legal representatives and late Sri.Hanumanthappa filed an Execution petition in 7 Ex. No.1742/2007 for executing the decree. In the said execution proceedings, petitioners intended to come on record and as such, they filed an application under Order I Rule 10 of the CPC to be brought on record as additional decree holders. It was their grievance that they had not been brought on record though they are the legal representatives of Muniraju and said Muniraju being the son of Hanumanthappa and they are entitled to be sued and the right to sue survived on them also. Executing Court has dismissed the application after having observed at paragraph No.9 of the impugned order that there is no dispute that the applicants are the legal heirs of Muniraju and there being no dispute to the fact that Muniraju is the son of Hanumanthappa, namely the original plaintiff. It is no doubt true that in the execution proceedings, the inter se dispute or lis between the decree holders cannot be decided. However, the present decree holder, namely respondent No.1(b), cannot be heard to contend that he is the only beneficiary to the decree passed in O.S. No.51/1983, 8 particularly when there is no dispute that applicants are also the legal representatives of Muniraju and said Muniraju being the son of Hanumanthappa as such, the Executing Court was not justified in rejecting the application. In that view of the matter, impugned order cannot be sustained.
6. However, the apprehension or the fear expressed by the decree holder is that the present applicants are likely to collude with the judgment debtor and stall the execution proceedings and said application can be allayed by making it expressly clear that for the limited purpose of representing the estate of the deceased Sri.Hanumanthappa, petitioners are ordered to be brought on record and the rights, if any, in the property put into execution will have to be resolved independently. In other words, it is made clear that the petitioners - applicants would not be entitled to raise any ground with regard to their entitlement in the said property except being continued as the legal 9 representative of the deceased Hanumanthappa. In the present Execution petition, they shall also cooperate with the decree holder, Sri H. Mohan, who is respondent No.1(b) in the present proceedings and the Executing Court shall dispose of the execution proceedings on merits and in accordance with law. Subject to above observations, I proceed to pass the following:
ORDER
(i) Writ petition is hereby allowed.
(ii) Order dated 13.01.2015 passed by the
XVI Additional City Civil and Sessions
Judge, Bengaluru City, in Ex.
No.1742/2007, Annexure 'A', is hereby set
aside.
(iii) Application filed by the writ petitioners
under Order 1 Rule 10 CPC., Annexure 'E', is hereby allowed. They are ordered to be brought on record as decree holders 'c' to 'f' in Ex. No.1742/2007, which would be 10 subject to the observations made hereinabove.
Ordered accordingly.
SD/-
JUDGE sma