Karnataka High Court
G Mallikarjuna S/O Sudugadappa vs Edigara Huligamma W/O Edigara ... on 4 October, 2023
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4th DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C. M. POONACHA
REGULAR SECOND APPEAL NO. 5222 OF 2011
BETWEEN
G. MALLIKARJUNA,
AGED ABOUT 33 YEARS,
S/O SUDUGADAPPA,
R/AT NO. 17, WARD NO. 13,
UKKADAKERE, HOSPET.
...APPELLANT
(BY SRI. V. VIDYA, ADVOCATE)
AND
1. SMT. EDIGARA HULIGAMMA,
Digitally signed
by
AGED ABOUT 69 YEARS,
SHIVAKUMAR
SHIVAKUMAR HIREMATH W/O EDIGARA NAGENDRAPPA,
HIREMATH Date:
2023.10.07 R/AT NO. 114, DANAPURA VILLAGE,
11:50:52
+0530 HOSPET TALUK.
2. N. APPA RAO,
AGED ABOUT 63 YEARS,
S/O LATE. VENKATASWAMY,
R/AT E. V. CAMP, T.B.DAM, HOSPET.
AND ALSO AT NO. 114, DANAPUR VILLAGE,
HOSPET TALUK, BELLARI DIST.
...RESPONDENTS
(BY SRI. S. S. YADRAMI, SENIOR COUNSEL FOR R1;
NOTICE TO R2 IS SERVED)
2
THIS REGULAR SECOND APPEAL IS FILED U/S. 100 OF CPC.
1908, AGAINST THE JUDGMENT AND DECREE DTD: 08.12.2010
PASSED IN M.A. NO. 41/2009 ON THE FILE OF THE PRESIDING
OFFICER FAST TRACK COURT III AT HOSPET, DISMISSING THE
APPEAL FILED AGAINST THE JUDGMENT DTD: 27.10.2009 AND THE
DECREE PASSED IN MISC. CASE NO. 21/2007 ON THE FILE OF THE
PRL. CIVIL JUDGE (SR. DVN.) AND J.M.F.C., HOSPET, DISMISSING
THE PETITION FILED U/O. 21 R. 97 OF CPC.
THIS REGULAR SECOND APPEAL HAVING BEEN HEARD AND
RESERVED ON 11.09.2023, COMING ON FOR PRONUNCEMENT OF
JUDGMENT, THIS DAY, THIS COURT PRONUNCED THE FOLLOWING:
JUDGMENT
The above second appeal is filed under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC', for short) challenging the judgment and decree dated 08.12.2010 passed in M.A.No.41/2009 by the FTC-III, Hospete (hereinafter referred to as 'first appellate Court', for short) and the judgment and decree dated 27.10.2009 passed in Misc. Case No.21/2007 by the Principal Civil Judge (Sr.Dn.) J.M.F.C, Hospete (hereinafter referred to as 'trial Court', for short).
2. The necessary facts leading to the present appeal are that the first respondent herein who is the first 3 respondent before the trial Court had purchased the property bearing Sy.Nos.277 and 278 of 114 Danapur village of Hospete Taluk (hereinafter referred to as 'petition schedule properties') from one Basavaraj vide registered SaleDeed Dated 12.03.2001. Subsequently vide registered Sale Deed dated 13.08.2002, the first respondent sold the said property in favour of the second respondent who was arrayed as the second respondent before the trial Court. Subsequently, the first respondent instituted a suit in O.S.No.149/2005 seeking to set aside the Sale Deed dated 13.08.2002 and for possession arranging the 2nd respondent as a defendant in the suit. The said suit was decreed vide judgment and decree dated 13.07.2006.
3. To execute the passed in O.S.No.149/2005, the first respondent initiated execution proceedings. The appellant herein who was the petitioner before the trial court filed an application under Order XXI Rule 97 of CPC to 4 set aside the judgment and decree passed in O.S.No.149/2005 or in the alternative, for declaring that the said judgment and decree passed in O.S.No.149/2005 is not binding on the petitioner and to restrain the first respondent from disturbing the possession of the petitioner by executing the decree in O.S.No.149/2005. It is the case of the appellant that he is the absolute owner of the petition schedule properties having purchased the same from the second respondent vide registered Sale Deed dated 14.11.2005 for a valuable consideration of Rs.70,000/-.
4. The application filed by the appellant/petitioner under Order XXI Rule 97 of CPC registered as Misc. Case No.21/2007 and the said proceedings was resisted by the respondents. The petitioner examined himself as PW-1. Exs.P-1 to P-13 were marked. The PA holder of respondents was examined as RW-1 and Exs.R-1 to R-5 were marked in evidence. The trial Court vide its order dated 27.10.2009, rejected the application filed by the petitioner. 5
5. Being aggrieved, the petitioner preferred M.A.No.41/2009 before the first appellate Court. The respondents entered appearance before the first appellate Court and contested the proceedings. The first appellate Court by its judgment dated 08.12.2010 dismissed the appeal filed by the petitioner. Being aggrieved, the appeal has been filed.
6. This Court vide order dated 24.07.2015, has admitted the above appeal and framed the following substantial question of law:
1) Whether the judgment and decree passed by the Courts below are illegal in view of the settled principles of law governing Order XXI Rule 97 of CPC?
2) Whether the judgments and decrees of the Courts below are sustainable in view of Section 53 of the T.P. Act?
7. Smt V.Vidya, learned counsel for appellant contended that:
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i) the suit filed by the respondent No.1 against the respondent No.2 was not contested by the respondent No.2 and he was not served with the summons in the said suit;
ii) that the appellant being the bonafide purchaser for value and having paid the sale consideration under the Sale Deed dated 14.11.2005, the application filed by the petitioner ought to have been allowed.
8. In support of her contention, she relies on the following judgments:
i. Silverline forum Pvt. Ltd. Vs. Rajiv Trust and another 1;
ii. Shreenath v. Rajesh2; iii. A.V.Papayya Sastry & Govt. of A.P.3; iv. Satluj Jal Vidyut Nigam v. Raj Kumar Rajinder Singh4. 1 (1998) 3 SCC 723 2 (1998) 4 SCC 543 3 (2007) 4 SCC 2XXI 4 (2019) 14 SCC 449 7
9. Hence, she seeks for allowing of the above appeal and granting of the relief sought for.
10. Per contra, Sri S.S.Yadrami, learned Senior Counsel along with learned Counsel Sri Girish Bhat appearing for the respondents submits that the appellant has purchased the property during the pendency of the suit and the same is hit by the doctrine of lis pendence. That the petitioner does not have any independent right over the said property and he is only claiming through the judgment debtor. That all aspects of the matter having been adequately considered by the trial Court and the first appellate Court and concurrent findings having been recorded against the appellant, the same is not required to be interfered with in the present second appeal. In support of his contentions, the learned Senior Counsel relied on the following judgments:
i. Usha Sinha v. Dina Ram & Ors.,55; 5 (2008) 7 SCC 144 8 ii. Sriram Housing Finance and Investment India LTD., v. Omesh Mishra Memorial Charitable Trust6; iii. Vijayalakshmi Leather Industries (P) Ltd., v. K.Narayanan"7; iv. Guruswamy Nadar v. P.Lakshmi Ammals8.
11. I have considered the submissions made by both the learned counsel and perused the material available on record.
12. In order to consider the substantial questions of law framed by this Court, it is relevant to note the admitted factual matrix. The Appellant purchased the property vide registered Sale Deed dated 14.11.2005. The suit in O.S.No.149/2005 was filed on 12.8.2004 and was decreed on 13.07.2006. Hence, it is clear that the Appellant has purchased the property during the pendency of the suit. 6
2022 AIAR (Civil) 712 7 2003-1-L.W.772 8 LAWS(SC)-2008-5-48/AIR(SC)-2008-0-2560 9
13. It is the case of the appellant that he has filed application/petition under Order XXI Rule 97 of the CPC stating that the averments made by the first respondent in the suit i.e., OS.No.149/2005 were baseless and there was no corroborating evidence in support of the contention that the suit was filed after a long gap of 2 years between the Sale Deed and the delay was not adequately explained. It is the further contention of the appellant that the first respondent managed to get an ex parte decree without any attempt of actual service of summons on the second respondent. That the appellant's rights in respect of the suit property which he has acquired vide Sale Deed dated 14.11.2005 are independent of all the said aspects between the respondent Nos.1 and 2 and hence, it is his assertion that his purchase would not tantamount to a lis pendence and he has acquired an independent right in the suit property.
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14. It is asserted by the appellant that he has continued to be in possession of the suit property. However, it is the specific case of the second respondent that he is in possession of the suit property. The appellant has further made allegation of collusion inter se amongst the respondents. The essential ground on which the petition filed by the appellant was opposed was the fact that the appellant was lis pendence purchaser during the pendency of the suit.
15. The Trial Court consequent to the pleadings had framed the following issues for consideration:
i. "Whether the petitioner proves that, he is the absolute owner of the suit property?
ii. Whether petitioner further proves that, the judgment and decree in OS No.149/2005 is not binding on him? iii. Whether the transaction between the petitioner and respondent No.2 hit by principle of Doctrine of lis pendense?
iv. Whether petitioner is entitled to the reliefs as sought for?
v. What Order?"11
16. The Trial Court, upon an appreciation of the oral and documentary evidence available on record has answered the issues for consideration in the negative and has dismissed the petition filed by the appellant holding that the appellant being a lis pendence purchaser, the petition under Order XXI Rule 97 of the CPC is not maintainable and hence, rejected the petition.
17. The first appellate Court framed the following points for consideration:
i) "Is the Trial Court not justified in holding that transaction between petitioner and respondent No.2 is hit by principles of Doctrine of Lis-Pendence?
ii) Is the Trial Court not justified in holding that the judgment and decree passed in O.S.No.149/2005 on the file of Addl.Civil Judge (Sr.Dn), Hospet is binding on the petitioner?
iii) Is it necessary to set aside the Order under appeal?
iv) What Order?"
18. Upon a re-appreciation of the oral and
documentary evidence available on record, the first
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appellate Court has rejected the appeal and confirmed the findings of the Trial Court and dismissed the appeal.
19. It is necessary to note the relevant statutory provisions as under the relevant sub rules of Order XXI as follows:
"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 in 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 application and not by a separate suit and for 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. "102.Rules not applicable to transferee pendent 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."13
20. The judgments relied on by the learned counsel for the appellant are considered as under:
i) The Hon'ble Supreme Court in the case of Silverline Forum¹ has held as under;
"9. At the outset, we may observe that it is difficult to agree with the High Court that resistance or obstructions made by a third party to the decree of execution cannot be gone into under Order 21 Rule 97 of the Code. Rules 97 to 106 in Order 21 of the Code are subsumed under the caption "Resistance to delivery of possession to decree-holder or purchaser". Those rules are intended to deal with every sort of resistance or obstructions offered by any person. Rule 97 specifically provides that when the holder of a decree for possession of Immovable property is resisted or obstructed by "any person" in obtaining possession of the property such decree-holder has to make an application complaining of the resistance or obstruction. Sub-rule (2) makes it incumbent on the court to proceed to adjudicate upon such complaint in accordance with the procedure laid down.
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 a transferee and on a finding in the affirmative regarding that point the execution court has to hold that he 14 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 principle adumbrated in Section 52 of the Transfer of Property Act.
11. 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.
12. 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 resister raised it. The questions which the 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 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 resister 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, the execution court can decide whether the question raised by a resister 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.
14. It is clear that the executing court can decide whether the resister or obstructor is a person bound by the decree and he refuses to vacate the property. That question also squarely falls within the adjudicatory process contemplated 15 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 resister. Of course the court can direct the parties to adduce evidence for such determination if the court deems it necessary."
(Emphasis Supplied)
ii) In the case of Shreenath² the Hon'ble Supreme Court has held as under:
"10... Order 21 Rule 97 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by "any person". This may be either by the person bound by the decree, claiming title through the judgment-debtor or claiming independent right of his own including a tenant not party to the suit or even a stranger. ....
11. So, under Order 21 Rule 101 all disputes between the decree-holder and any such person is to be adjudicated by the executing court. A party is not thrown out to relegate itself to the long-drawn-out arduous procedure of a fresh suit....."
(Emphasis Supplied)
iii) In the case of A.V.Papayya Sastry3 the Hon'ble Supreme Court was considering the aspect of fraud and its resultant effect and has held as follows:
"21. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law.....
22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye 16 of the law. Such a judgment, decree or order-by the first court or by the final court-has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings,"
(Emphasis Supplied)
iv) In the case of Satluj Lal Vidyut Nigam4 the Hon'ble Supreme Court considering the aspect of fraud has held that fraud vitiates every solemn proceedings and no right can be claimed by a fraudster on the ground of technicalities. The Hon'ble Supreme Court has also referred to its earlier judgment in the case of A.V.Papayya Sastry3.
21. The judgments relied on by the learned counsel for the respondent are considered as under:
i) In the case of Usha Sinha5 relied upon by the learned counsel for the respondent the Hon'ble Supreme Court has concurred with the dicta laid down in the case of Silverline Forum¹ and considering order XXI Rule 102 has held as follows:17
"17. ...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 recognises the doctrine of lis pendens recognised by Section 52 of the Transfer of Property Act, 1882*, Rule 102 of Order 21 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 realise 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.
26. For invoking Rule 102, it is enough for the decree- holder to show that the person resisting the possession or offering obstruction is claiming his title to the property after the institution of the suit in which decree was passed and sought to be executed against the judgment- debtor. If the said condition is fulfilled, the case falls within the mischief of Rule 102 and such applicant cannot place reliance either on Rule 98 or Rule 100 of Order 21.
29. The High Court, in our opinion, rightly held that the appellant could not be said to be a "stranger" to the suit inasmuch as she was claiming right, title and interest through Defendants 4 and 5 against whom the suit was pending. She must, therefore, be presumed to be aware of the litigation which was before a competent court in the form of Title Suit No. 140 of 1999 instituted by the present respondent against the predecessor of the appellant.
(Emphasis Supplied) 18
ii) In the case of Sriram Housing Finance and Investment India Ltd.,6 the Hon'ble Supreme Court has reiterated the principles as laid down in its earlier judgments in the case of Silverline Forum1 and Usha Sinha5.
iii) In the case of Vijayalakshmi Leather Industries (P) Itd.,7 a Division Bench of the Madras High Court has held as follows:
"7. It is a clear statutory bar on the parties to the proceedings from transferring any property which is the subject matter of the litigation. In view of such statutory bar, any transfer made by any of the parties to the proceeding pendent lite is non-est in the eye of law because the transferee will be entitled for the right of his transferor alone and nothing more. ..."
(Emphasis Supplied)
iv) In the case of Guruswamy Nadar8 the Hon'ble Supreme Court noticing the fact situation that the subsequent transaction had taken place two days after the institution of the suit has held that the principles of lis pendency will govern the said case.
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22. Having regard to the fact situation and the legal position, as noticed above, it is clear that admittedly the first respondent is the owner of the schedule property having purchased the same from one Sri Basavaraj vide registered Sale Deed dated 12.3.2001. Further, vide registered Sale Deed dated 13.8.2002 she sold the property in favour of the second respondent. Subsequently, OS No.149/2005 was filed on 12.8.2004 by the first respondent arraying the second respondent as the defendant to set aside the Sale Deed dated 13.8.2002. It was the contention of the first respondent in the said suit that the second respondent had fraudulently got executed the Sale Deed dated 13.8.2002. It is further relevant to note that the appellant is the purchaser under a registered Sale Deed dated 14.11.2005 from the second respondent, which Sale Deed has been executed during the pendency of the suit in OS No.149/2005. The said suit has been decreed on 13.7.2006 and the following order was passed: 20
"The suit of the plaintiff has been decreed with costs as under:
It is declared that, the plaintiff is the absolute owner of the sult schedule property. The Sale Deed dated 13.8.02 executed by the plaintiff in favour of the Defendant is hereby cancelled.
The Revenue authorities are hereby directed to rectify the Record of Rights in favour of the plaintiff.
The Defendants is hereby directed to hand over the possession of the suit schedule property in favour of the plaintiff within 3 months i.e., after depositing the amount of Rs.50,100/- by the plaintiff.
The suit of the plaintiff is further decreed that, the Defendant has to deliver the vacant possession of the suit schedule property to the plaintiff within one months after depositing the amount by the plaintiff i.e., 3 months from the date of the Decree.
The suit of the plaintiff is further decreed that, the Defendant his agents, any person or persons claiming through him is hereby permanently restrained from interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiff."
23. For Execution of the decree in OS No.149/2005, EP No.176/2007 has been filed. The appellant who filed the application/petition under Order XXI Rule 97 of the CPC which was registered as Misc. No.21/2007 has contended that the decree obtained by the first respondent against the second respondent is a fraudulent one and they have 21 colluded with one another. Hence, it is clear that the first respondent alleges fraud against the second respondent with regard to execution of the registered Sale Deed dated 13.8.2002 in respect of which OS No.149/2005 has been decreed. The appellant alleges fraud against respondent Nos.1 and 2 with regard to the decree obtained in OS.No.149/2005. The petition/application filed by the appellant in Misc. No.21/2007 was under Order XXI Rule 97 of the CPC and the scope of enquiry was limited to consider as to whether the appellant had an independent right in the schedule property.
24. The Trial Court as well as the first appellate Court considering the settled position of law as noticed above as well as the specific wording of Order XXI Rule 102 has held that the appellant having purchased the schedule property vide registered Sale Deed dated 14.11.2005 which was admittedly during the pendency of the suit was claiming through the second respondent judgment debtor 22 and hence, was not entitled to resist the execution of the decree and had no independent right. there is an allegations regarding Though there is an allegation regarding collusion between respondent Nos.1 and 2 that the decree in OS.No.149/2005 is fraudulently obtained, it is relevant to note that the scope of enquiry in being the present proceedings being one under Order XXI Rule 97 is limited to ascertain whether the appellant had independent right in the suit property.
25. Having regard to the fact that the registered Sale Deed 14.11.2005 under which the Appellant purchased the property was during the pendency of the suit, the said transaction would attract the principles of lis pendence and having regard to Order XXI Rules 102 of the CPC he would not be entitled to resist the execution of the decree.
26. It is further relevant to note that in order to establish his right, the appellant is required to initiate 23 appropriate legal proceedings either to challenge the decree in OS No.149/2005 or initiate appropriate civil proceedings to seek a declaration that the decree passed in OS No.149/2005 is not binding on him. In the absence of the same, the decree in OS No.149/2005 being valid and subsisting, the same will be required to be executed.
27. This Court exercising jurisdiction under Section 100 of the CPC while considering the present second appeal cannot go into the aspect of fraud since the said aspect of the matter was not the subject matter of enquiry in the proceedings in Misc. No.21/2007 as well as MA No.41/2009.
28. In the present proceedings there is no finding of fact recorded that the decree in OS No.149/2005 is fraudulent one and while considering the present appeal it is impermissible in law for this Court to go into the allegations of fraud which is question of fact for the first time. Hence, it is open for the appellant to institute 24 appropriate civil proceedings calling in question the decree passed in OS No.149/2005 and if such proceedings are initiated, the appellant will be entitled to the benefit of exclusion of time as contemplated under Section 14 of the Limitation Act to exclude the period of time spent in prosecuting the Misc.Case No.21/2007, MA No.41/2009 as well as the present appeal.
29. In view of the aforementioned, the present appeal is dismissed.
(Sd/-) JUDGE Naa/nd