S S M And Sons vs Nanjamma Since Deceased By Her Lr on 15 October, 2008

[Cites 2, Cited by 1]

Karnataka High Court

S S M And Sons vs Nanjamma Since Deceased By Her Lr on 15 October, 2008

Equivalent citations: AIR 2009 (NOC) 2005 (KAR.), 2009 (3) AIR KANT HCR 107, 2009 A I H C 1925, (2009) 4 KCCR 2759

Bench: B.V.Nagarathna

 

IN THE HIGH COURT 0? KARNATAKA A? EAﬂéALoaE5

DATED THIS THE 1S" DAY of og€pk£:if2c§8 _ 

BEFpRE' A_
THE HON'BLE MRs.JuéT:¢z_B V ngaéaégnna
HRRP Nos.39i2Qo2;ﬁéif2Qé2.& 4622602

BE TWEEN

Haayféé/0éf_,§ 

1 s S*M & SONS" "w*
CARRYING ow BUSINESS IN HOSIERY
.MIN pREM:sEs*No1102 {OLD NO.lO0)
.5 LAKsHMI«apILuING, BALEPET
V-« ~' BAN@ALoRE+S3
v, .32? BY ITS PARTNER SRI.KHIMCHAND
'--'= ~'a 2 ... PETITIONER

(af%sRI $0k VASANTH, ADv.,)
  AND ,_ .

-.4-an-«.4-u

'".'" -_j} MANJAMMA, SINCE DECEASED BY HER LR
T' V G.H.PREMAKUMARI, 56 YRS, 9/0 LATE
NANJAMA W/0 M.BASAVARAJ, R/0 No.7



_ 2 ,

5TH DIVISION, GIRLS SCHOOL ROAD
CHICKBALLAPUR

2 RAJANNA SINCE DECEASED BY LRs,mjf 'C'

A)SW%RNAMMA
W/O LATE RAJANNA
MAJOR ;_
R/O ca:cKBALLAPUR'.fm

BBIEIRISH s/0 Lars RAqAB&A'r_ -
MINOR, REP BY_M0THER_swaRNAMA
R/O CHICKBALLAEUR * *' VYn =

C3 HARISH s¢Q_LA?E"R3sAM$A 

MINOR} hﬁE;BY HdTHER,SﬁmRNAMMA
3/0 CHT3KB3LL59"5 .;

D)RﬁJNITH'S7§fiATEwRAJANNA
MINOR; REP BX"MQTHER SWARNAMMA
A.R/0 CHICKBALLAPUR

 ".mazé§buIums 3k;a'4 A38 numsrnn V70
=_.a$,_3,4,29e2_

. . . RESPONDENTS

{BY SR: A KRISHNA BHAT. ADV.' FOR R-1;
sR1~3 K SHETTY, Anv., FOR R{A-TO D);

." ﬁﬁnR&3 a~4 ARE DELETED v/o DT. 3.4.02)

x _  ' THIS HRRP IS FILED U/S.50{1) OF KRC ACT
"j.wRJw.sEc.46(2) or KRC BET p£AIN9r THE COMMON
"= ORDER DATED 11.12.2001 PASSED ow IA No.10 IN



-3-

€.X.P.NO.86l1/93 ow THE: FILE! 0:? xi:-.'}:~.DDLT.%_"<--u
SMALL CAUSES JUDGE, BNsALoag,{p1sn:ssiNGViA
NO.X FILED U/O 21 £1 97 $o;1e1'c9c cLA£miNs

TENANCY RIGHTS.

HRRP 21/02

BETWEEN

--.-----.-.-n...n.-~--.---

1 G H BREM§ﬂKUMARI_ _x_,
0/0? LATE "bmJAE%'1A  
W/O'M BESAVhRAJ**

[AGED*RBOUT4E7°YRS
13/A'N0;7;.5TH*g:visI0N
GIRLS SCHOCL Egan'
CHIKKRBALLAFURA"

, ' . =~' V ' ... PETITIONER

?ﬁ ".(§§aSRI A_KRIéHNA BEAT, ADv.,)

"LuA3b*"'

'.......;._.,.

1i.R3JAﬁNA
's/0 ATE CHIKKRVEERANNA
'=»_ SINCE DEAD BY HIS LRS

 A; SWARNAIVEVIA
I W/O LATE RAJANNA
MAJOR



- 4 _

R/A NO.7 GIRLS SCHOOL ROAD
CHIKKABALLAPURA

rm GIRISH, sou, MINOR
REP BY NATURAL GUARDIAN
MOTHER SWARNA
CHIKKABALLAPURA _II_

{N HARISH, SON, MINOR 1' I u
REP BY NATURAL GUAREIAH_",
MOTHER SWRRNA "T" ';
CHIKKRBALLAPURA

D)RANAJITA,MI&OR « *;
REP BY NATURkLfGUAR$IANgm"a_
MOTHER SWARNA " * *= =.=

 
  .    RESPONDENTS
(BY SRI H K sHE?TI},AbV., FOR R(A)
R{A) IS THE EATURAL GUARDIAN 03 R43 TO D}

 ° Inxs HRAP IS "" EILED U/S.50{l) 0? KRC ACT

A';RfW}ORD$R 21 RULE 103 CEC AGAINST THE ORDER
".D@;1i.I2,G1" PASSES on IA N0.XVI IN

EA,9g$N§AC.8e11/93 on THE FILE OF THE II ADDL.
SMALL CAUSES JUDGE, BANGALORE, DISMISSING IA

 }iRG.I6 FILED BY THE PETITIONER U/0 21 R 97 T0
, _'II0i cpc TO HOLD AN ENQUIRY REGARDING HER RIGHT
"'u "AND INTEREST OVER THE PETITION PROPERTY.



HRRP 40/O2

BETWEEN

1 M/S.MEENA LUGGA§E CENTRE vW_ 
CARRYING on BUSINESS IN TRAvEL_g
GOODS IN PREMISES NO.101 "
(OLD NO. 100) V » 2 v,»
LAKSHMI BUILDING, BALEPET*t7u -
BANGALORE~53 % =-T'*

REP BY ITS PARTNER K.é;Mﬁ§¢HAR;%"-= 7f',

{BY SR1 K K vasnnra, AQ§},)»_

3h_NAﬁ3A3MA}-- _
.¢¢ SINCE EECEASED BY HER LR

_ _G H PREMAKUMARI
"u s5-$95; D/O LATE NANJAMMA
WIG_MgBASAVﬁRAJ
R/o,wo.7, 5TH DIVISION
"GIRLS SCHOOL ROAD
"_CHICKBALRLPUR

' =_"2 RAJANNA SINCE DECEASBB BY LRS
A. "A)SWARNAMA

W/O LATE RRJANNA

;m. parxwxewga



-5...

MAJOR

R/O CHICKBALLAPUR Mm

B)GIRISH 5/o LATE RAJANMA 1 n »'~_ 'a~
MINOR, any BY MOTHER SWARRAMMA Q. "
R/O CHICKBALLAPUR*_V  *. . '

cn HARISH s/0 LATE RAJANNA  V_
MINOR, REP BY MOTHER SWﬁRﬁAMMA

R/O CHICKBALLAPURV ~*«

9)RAJNITH~é/0 L$Tg éAJAﬁﬁA- f
MINoR,;Rg?@By'Mo$HEg«$wARNAMMA

R/O cH:cKBALLP§g*._,

. RESPONDENTS

(BY SR: A KRISHNA BHAT, ADV., FOR Rml;
sax H'K sngrrz, Aav., FOR R(A T0 D);

°'«.R~3'&:4 ARE DELETEG V/O DT. 3.4.62}

'  TﬁI$"HﬁRP IS FILED U/S.50(l} or KRC ACT
R/Wf3ECiéS(f) 0? KRC ACT AGAINST THE COMON

'V-v0RDéRz$£TEb 11.12.2001 PASSED 0 IA No.11 IN
 ""-.V%%?%I:::ec,;>.1~:c;-Q8611/93 on THE FILE or THE II ADDL.

'Snag; CAUSES JUDGE, BANGALORE, DISMISSING IA
V_ Nb;X FILED U/O 21 I2 97 TO 101 cpc CLAIMIM3
J"ff?ExANcy RIGHTS.



_ 7 -

THESE HRRPs COMING C»: Rﬂk ﬁEA§1§e"i%istg

BAY, THE COURT MADE THE FeLzew1Nq:_"

ORDERt'

..._.._.............--........._

These three feyisieﬁe ﬁetitieﬁé ate filed
by the app1tcantsLeﬁethed £@ié§ﬂ1.A.Nos.X, XI
and XVI ;'§§£oré_ ;t5e'vwﬁ6uﬁtE':below, being
aggrievee eb§"*th¢*5$ism§égg1' of the same by
ordetHeetedtﬁietéeéﬂﬁtxie Execution Petition
No.8é11?l993;e}e"

-

' 5?. V The Htelevant facts «of "the case are t'.thattenefS¢t.Nanjamma and her son Sri Rajanna ' I who ,a:e? since deceased and Rajanna being 'x;epteeented by his legal representatives, had t{tfiied an eviction petition in HRC No.2844/1981 ~ against the tenants in respect of premises bearing No.100 and 102 which shall hereinafter be referred to as the 'scheduletjpreﬁieee'h, under Section 23_<1)(a), §'fi')';'-.(_hr.; .;.-:ﬁ;iih1(:p-;l'«a§$~§ the Karnataka Rent CQntrel_ Bet, i;961«.a§n,it_ then existed, before the Court of Smaii Causesi at Bangalore. By ;the;kbﬁaer Wjateﬂh"28:3.1987, the said evictioh pe:i:i§n:§a§ allowed under Section 21iiy!h)§ eireetiﬁg_ the tenants to vacate the preﬁieegihithih six mnths frem the date of_thegor&er. Being aggrieved by the said oraer,t'..V_CR:9 ':sz§'.'~1é:'3:}:iA! i'987 and CR? 550.1262/1987 wag preferre§"hy the tenants. This Court, by '*e:;._rderWeiate<3 3.9.1992, dismissed both " the 'révieioh petitions granting one year's time to-the tenants frem the date of the order Awiw 'to vacate and deliver vacant pessession of the i>ﬁremi$es to the landlords viz., Nanjamma and "i*~~§ajanna. During the pendency of the said revision petitions, Rajanna died on 30.10.1987 £4.

-9- and his legal repreaentatives were brought on record.

3. Subsequently, on _Hw}8,iQ:i§93t!Fr execution petition was fiied ﬂy agxy the iegai representatives of »:Rajanna= in. .Execution= Petition No.8611/1993."*:t is éigﬁifiegnt that though Nanjamma'Qas sh0ﬁﬂta$"3 petitioner in theaexecﬁtion§petition,oehe had not signed the same apd_tn¢tei§:§ had not joined the legal representatives of Rajanna in preferring the ﬂ".saicVexecptionwoetition. During the pendency E= oi the Said execution petition, an application has ﬁileﬁ by one Maganlal under Order XXI Rule i"_97 to 99 CPC {I.A.No.2) contending that he is 'Xithe son of one of the tenants in respect of . the schedule premises. During the pendency of the said application, Nanjamma died on 2&4 J1

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28.8.1996. I.A.No.2 came to be dieﬁieeeﬂ§hy_ an order dated 16.11.199;;6A._ challenge made to the said other and ﬁenee§ the same has attained'fina1it§. V

4. Subsequently; :gR}Ne.8 was filed by the petitioner,g""G.H.?:eeekeﬁefi in HRRP No.21/2QQi un§er~$eetion :51 of CPC seeking to imleadlﬁereeiﬁ--eeLone of the decreemholders an tﬁg_g;ouge teat she was one of the legal representatives of Nanjamma and also a legatee l".gnde§l the will' executed by Nanjamma dated :=l2i.1.i9gé;.} The legal representative of Rejanna who is one of the joint decree-holders l"_in the eviction petition objected to the said iviapﬁlication and the Court below dismissed the esaid application.

,2«/,.

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5. Being aggrieved by thg"i$aiﬁ:~@rder rr passed by the Executing C§ﬁr£;'$R$*ﬁ0;6$9]1§97 was filed before this icﬁurt _wn;¢n iﬁ3s;r however, dismissed bf";§rderV"détéd i§ri.1997V confirming the i§rderi:§a$$§&_ by itﬁe trial Court.

6.€ Wﬁeﬁwimafﬁﬁrsaréfpoﬁ thus, I.A.Nos.X and XI Qérewfiie§R§y_tﬁ§ petitioners in HRRP No.3§72GO2"aﬁdCH§Ré"ﬂb.40/2002 under Order XXI Rule _ 9? . CFC .7r$ising objections to the i".éXécﬁ£i6n by éﬁﬁtending that they were tenants i*iwﬁ§ $r§"iﬁd§cted into the schedule premises by the ;;e't.i.:*iioner in HRRP No.21/2002.

7. I.A.No.XVI was filed by the rpetitioner in HRRP No.21/2002 under Order XXI Rules 97 to 101 C90 raising objections to the &' ...1_2_ execution petition. By' an;"¢r§§fﬂ<daﬁéd rr 11.12.2001, the three _ apgiieaticﬁsjz ware % dismissed by the Courtxpe1ﬁw, Beiﬁ@;é9grié§e§> by the said order, the §ﬁpl;céﬁt:iﬁ I;A.No.XVI before the Cour£7_bé1q§i"hg%r_preferred HRRP No.21/2002.randr~t5¢vr§§néﬁr§ijQho are the app1icahf%!¢§%:.$.§.#r§;¥ éﬁd; xx before the courguvﬁe;§§;_ﬁ§§¢rF§§é§§r§é§ HRRP No3.39/2002 andtéﬂ/ﬁdﬁzgrrépégrively.

ﬁt Sihré éﬁg getitioners are aggrieved by é=comﬁoﬁ or@er dated 11.12.2001, all the . rrgvisionrapetitions have been connected and : .HeardFtQg@fher and disposed of by this order.

"9. 1 have heard Sri A.Krishna Bhat, r:iéérned counsel for the petitioner in HRRP "TNo.2l/2002, Sri H.K.Shetty, learned counsel 3:.

-u---.._

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for the respondent/ legal represent.e_t'hiVVe:s ._ of"

Rajanna and Sri K.K.Vasanth, who appears for the pe'ti_tioﬁ'e_rS iiotifxei two revision petitions shae'-. the submissions of Sri it

10. it: ieii$hbﬁitt§§¥hoﬁ"woeha1f of the petitioherehthet sigh; hhmeti, the petitioner in _' other than the naturaii who is one of the joigt"decree§ho1ders in the HRC petition and the legatee under the will and i"'t_hoje§;h'4:"her:"'vr:ight is through Nanj amma, during the pehdehcy of the execution petition, she it 1-"3C1_ obtained possession of a portion of the "":~fVVc'he:<;iule premises and thereafter let out the "same to the petitioners in HRRP Nos.39/2002 and 40/2002 and therefore, they being in :§£4t -14- possession, the decree could not fhave. been executed against them. Its -is, ifurtnezii. submitted that on an apniication filed ﬁnﬁer Order XXI Rule 97 or'gnder!Rule;§§iQ?C; the; Executing Court ought to hold an enﬁuiry and that the procedﬁfe undef"Qtcer XXI Rule 100 CFC applies and it is angibgoﬁs to a suit and therefore; étneitconftieheiowi erred in not holdino en eﬁquirg on their applications and summe;i}y:'dis$issing= the said applications. He therefore reqnésts this Court to set aside ».c-At5§ impugneo order and direct the Court below "tcV;ecohd evidence on their applications and thereafter, pass orders in accordance with law"._H_ 3

11. Per contra, it is submitted on behalf of the respondents that subsequent to ﬂ» , ;5 _ the order passed by this Court in too ¢i§i1 Revision Petitions confirming theilordofn of ". eviction, the legal represéntatiﬁes of Rojénna who is one of 'the joint 'qéc§ee4h¢iae:é fh§d, filed. the exeoutioni". pétitionﬁiiooéotingw possession of the schéduio pgemioés ond the other joint decree;holdeE5boiﬁg late Nanjamma under whom tho potitionof in HER? No.21/2002 viz.g Prémé_KuoarjRgs said to have derived her title could'notfhaﬁé"maintained an application under ofoeg XXI Rﬁie 97 to 101 cpc and that ii" when her statoé ﬁas that of a joint decree- i»ﬁoidefpii$ho~ was not a stranger to the prooeediﬁg although she had not joined others t»in tho execution of the said decree and that udttho application filed by her viz., I.A.XVI was R""tM_not maintainable and that she had no locus standi to file that application by contending ﬁx -15- that there was obstruction in the exeeutienﬂefih the decree en the ground that she has ebteineé«V pessession whereas, such an;apnlication:eeuld, have been nmintainad eniy twee: deereeeheiderh against a stranger g"an§nh:thetefore} the application was riehtlﬁxfejeeteﬁ by the Court below. He~Ljfuﬁthef£ issbmitsr that the applicatierins---.V"I'§V'A.§N-Q'3:;'§£4.. _x3: filed by the petitioners in HRH? hosts?/2002 and 40/02 who claim right; tiege and interest through Frema Kumari coﬁld net have Haintained the same as . w_t5é§ had {m2 hetter right or £1 higher right Ewthan'tErema=LKumari and hence. the Executing Ceurt_risht1y dismissed the said applications. .12s Both the counsel have relied upon i tfeettain decisions which shall be adverted to (I

13. submissions, the points _that atiséj fog. my"

consideration are as follonsrfio 1V.o,' g¢-7f _Qiin' %HRRP;L

1.

-17..

Taking note of Whether the _ petitioner No.21/2002 and rpetitionefs :hi HRRPi No.39/2Gﬁ2_and HERE No.40/20¢2 could '"noyo§nainﬁéineé an application under 'iord§:fnxxi~»Ru1es 97 to 101 CPC aia@ainstVnnother joint decree holder? ",If 'ﬁﬁéi answer to point No.1 is in %'iLno negative, whether ting Executing ~i§Court was justified in dismissing the applications filed by the revision & petitioners in these petitions?

tné2"f7:i§ai~

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14. The relationship between_.t_Pj1"e.V.piartiéa in these cases are not in Raj anna and Prema Kumazi a1:'e the Ch'ii.icir"en1--. of V' late Nanjamma and Nanj';"iéeartV;:.r.i1z3_ an£.'i~.V_ had filed the Q;-esooottvvvof the schedule premises an order of evictiorg" this Court, execution: only the legal No doubt , Nanj amma who * the' decreeholder had not p1:ef.e.I:1:edu"a_ﬁvexeoution petition. It is also 'V "not~-tiirﬁdisputévwtﬁat Prema Kumari, apart from "ﬂ<:i,a_i.1ghter of Nanjamma, has also 1n<2§penae%;:§-.tiy ciaimed right, title and Z"'~.__V"*iAnte:5e.at in respect of the schedule property 'A T:."V»b13'.,_*}irtue of a will said to have been executed Nanjamma on 21.1.1987. At this stage, it is relevant to mention that Enema Kumari had &.

-19..

preferred I.A.VIII in the petition with a prayer to~'"impl&e;'3d as one of the decreeho1ders._A.h~e1:'«. from Nanj arruna and alisolliigayn the ' the' will executed by lganj '1 . The said application the ground that she Vf.3£-'.LI'1_u'>t on record as Nanj amma-f execut ion petition and partition suit pending in

0. the validity of the wi1,l..wae""tobde iadijdudicated and that Nanjamma ' 'made. enquiry held with regard to by one Maganlal in the Ex.ecqtihr}*AiCourt that she had not executed any The said application for impleadment dismissed and the same was upheld by this V. ,_._*:".'ourt, by its order dated 4.2.199'? in CR? No.689/199'? which has attained finality. /' _ go _ Therefore, the status claimed by Brema Khmari "

was in fact as as decreefholeer although she was not permitted to be_imﬁleaded, Sash EeinoV» the case, the question for consideration is as to whether Prema'kﬁmari;;hein§aa joint decreer holder, could hayeisfileﬁ ,gﬁfﬁa§p1ication in I.A.No.XVI sneer erder ﬁﬁl Rule 97 CFC raising objection to the eg§§u£isn'§£ the decree on the graundighgg she had ohtained possession of the la§heau:§7jr§g§¢§ses and had inducted t&32n§erl' V ul'l$ae ﬁt «this stage, it is relevant to rater to the provisions of Order XXI Rules 97 V"»to lOl so as to answer point No.1 with regard xletoilthe maintainability of the application E".__fi1&d by the petitioner in HRRP No.21/2902. Order XXI Rule 97 CFC deals with resistance or /451/.

_ 22 _

16. On a conspectua readingjiofhitheeea provisions, it becomes, _eleag- Mghatio 35*."

application under Rule 97 of Gide: xi: nan he maintained. only' by Q; person_ who, claims an. independent right and nQ£aa=;;ght"either under the judgment dehtot-otjaioeoneeholder. This 13 the Settieﬁ P§5iti°§=§ﬁ ia§§h But, in the instant ca3g§;§s£;angei§; tag application has claims to be a joint=Ideereé;5§1eeraWin one breath and an indepenoent person who has let out possession ' *- of the sohednie premises to tenants in another '7, breath, 7 .33 already' noticed, an application wae fiied by Prema Kumari contending that she t~Ais uaeijoint decreeholder along with Rajanna W 'Claiming right, title and interest through her _ mother Nanjamma. Such being the position, she could not have maintained an application under I}; .

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Rules 97 to 99 of Order XXI ef ﬂC$¢R"hYia contending that she was a sttaagerfahdehaﬁ an independent right bye viftee ofﬁibeihgiVin, possession of a portien of" the? eteeertyt Hence, in my opiﬁion?N£ﬁe_%§?1iC%£i5ﬁ itself was not nmihtainabie ah@ eeeﬁtito have been dismisseeﬂiiei iimihe th§tvthei Court below. Similafiygiethe»Eeﬁeiieatéehs filed by the '§::§5;39/2002 and 40/2002 since they claim right, titieeane ihterest through Prema Kumari ﬂ"._§he;Yﬁia_ not "have tttt the locus etandi 'or an

-indeﬁehdent right to maintain such an application. Therefore, the said applications V"_;ale0a ought to have been rejected at the i*threshe1d. Therefore, point No.1 is held } against the petitioners for the aforesaid reasons and the applications filed by them -25- application filed by one Maganlal. said order dated l6.ll.996, the o§u:£f£ei§wV« has recorded that the teVidenceolon_lrecordi establishes that there wee a colineion between the applicant (MaganlalT,and"P,W,ﬁ5f§aeatarajd ohusband of Prema_xumarii]aﬁe_Naajammai(p.w.3) who was under tne camera; oi FfWO2U It is further stated Nanjamma was not in a position to mote aﬂoat au¢*£¢ patalytic stroke and day- to--day,*her healtn had deteriorated and that in 1989 itself, sﬁe was not in a position to ll"-'pet fvhet Signature and therefore, the 'i,$eignateteeL}at Ex.P.1 to 9 could not be acceptedgl The Court below also observed that t» the etidence of P.Ws.1 to 3 on I.A.No.II could ll*not be believed and that the applicant f(Maganlal} was not an independent tenant under Nanjamma, the first decreeholder and that she & _ 25 _ was not in possession of the schedule"-._prem.i'e-es.,1 V' having an independent right; i0h. the' the said findings, I.A.:1.iwgé,<ais@:ssed"»§na*. there being no chal1enge""t«t}3. the it has attained finaiityifﬂaﬁtﬁt#eoset§etions of the Court below' lends support to on account of the"; f;5¢is¢a;":j§§,j~:.A.uo.::, the and XVI were also rej ecteeti an enquiry. In my \é'iex.,:--,.e j tfie Court vbelow was justified in thevviiébﬁalications *-I.A.Nos.X, XI and tutti *£i1¢é} ﬁnder Grder xx: Rules 97 to 99 wi*t__hotri;~ an enquiry thereon. 1.8. I aim supported in my View by the .,V_..cEie<.:ision of this Court reported in ILR 2003 KAR 660 in the case of (SR1 RAMACHANDRA vs &.

..27..

sMT.KEMPAMMA AND cmnans) wherehi it it helc t. that Order xxx Rule 97 cpc in ap§1tca§1g to a. person. who claims ant independent_ right tnot*, either under the judgnent _debtor:tor@ucecree holder and that genyf t§ttg5".c1atmiat right under the. decree _holde# gagj er iessee cannot invoke the n§o§i$tQu§fyf ﬁnder ﬁx: Rule 97 of CPC. Fron the §5ot§?§t¢tsion; it becomes clear that an anglicent ﬁgs t5 have an independent right ﬁin_ snag; itﬁr maintain an application under_Oraer XKI Rule 97 C90 and not either as ﬂ'.a"dééteé.ho1dé£ or a judgment debtor. In the " instant cése, however, it is ununderstandable as. a joint decree holder could have Vatmaintained an application resisting execution i> of the delivery warrant by contending that she . had put tenants in possession of a portion of the schedule premises. Kgﬁ/¢,

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19. In the case of Vie KANNAN AND erases reported'-,in;"'JTi§' 2064"

the Hon'b1e Supreme Cc;t_1_1':s*;.. was».efVti1e"A.3rj<._ew _i§thVet._'°. when there is ne pf irewsiiziengce from the side of V }#?$5:_r¢iGiCf-Qioniistvs, the app1ication'.V.unde35-- 97 of CPC eught te" of the above reasoning this judgment, * instant case, has not predueeei so show that she was in pd~tsseeeion"~.eAf the suit schedule premises and ';"f:,;rtheAr.:'"£:h_et she is entitled to maintain an under Order 21 Rule 97, CPC and suheviieehiéng one of the joint decree holders and it iiiew of the finding given earlier by the ti'-Zitrial Court while disposing of I.A.No.II, it can be safely held that on the basis of ﬁe.

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the decision of Hon't:-le petitioners herein failed,..iizfouﬁ.;e.1,ibet~a'nt'ti.atei their plea that .»f:h_ey v"x;{e're possession of the scheciuiv1e_VV premises 'fin their own right and hm-2_zrf)'--ce f(;r.i'."~t_h,e'«.M3aid reason, a further enquiry with'=.rec;arci'to"w--.that aspect was not nece_$%~;ar5y._. . "

<fah'~--"also be placed on another_ Hon' ble Supreme Court in_the'i<:.asve ofA'$iI;§?'ER FORUM PVT. LTD. VS RAJIV ANDAAVANQTHER reported in (1998) 3 sec it has been held that a third 'party 't:o.t:;the decree who offers resistance or obstruction to execution of the decree would within the ambit of Rule 1.01. of Order 21 GCPC, if an adjudication is warranted as a consequence of the resistance or obstruction /%

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made by him to the executienof th'e'v*cie<:jfee*._ i'Jr_<':'-"

doubt if the resistance "tem'ac'ie' transferee pendente Viite debtor, the scope of tfould be shrunk to the ".v:q1;1»e:etVi.'eAn"whether he is such a trans.fveree.VV--~--a.§,n:ci in the the execution court has no right to resist clear language contained in Rule cpc. Exclusion of such a t:;':'ar'ssferee__f'rom' raising further contentions the salutary principle enunciated 52 of the Transfer of Property ' .215 The Court further states that under V' 'ff€2x!Vrtier 21 Rule 9?, CFC the question which legally arise for determination between the ﬁx .x cinna-

.. 31 ..

parties only will have to be determined by the Execution Court. In other words, the Court is not obliged to determine a question_t~V~1fee_<rely because the resistor raised it. held that the third party;,.....:gho _'{:i'tié';'etVioﬁS'..the"".

validity of a transfer holder to an assignee,_v"'*~cannotV c1eiim§._'tv!--'zeti the,"

question regarding it_svVV:'q\_Ia3:idit"y.:_should be decided _A proceedings. It is further 4' held' Z-t'he_it._:"edjudication mentioned in Or§i'evr_ ,V"Ru.ie9;7(2} need not necessarily .in*Ici5IteVVi'A~e deteiiied enquiry or collection of : Court can make the adjudication on a.dr'ui?t'ted facts or even on the averments .An3ade".--i:;ay the resister.

22. Learned Counsel for the petitioners has relied upon the dictum laid down by the & -32- Supreme Court in the case of BRAHMDEO CHAUDHARY Vs RISHIKESH PRASAD JAISWAL AND ANOTHER reported in AIR 1997 supamma ceugrrass in order to highlight about the fégﬁémg. enunciated in the statutory~provisidﬁfof,Crderr 21 Rule 97 to 103 cpc whieh ash; eompiggéigaae for resolving all Vdisputes_ pertaining tea execution of decree fer pessessidn ebtained by a idecreegheider}a_and-W whose attempts at executihg 'the -3316» decree meet with rough weatherr Eh this Secision, it is stated that ﬂ" _ehee*freaistahee is offered by a "purported runstraﬁger%Fto the decree and which comes to be Anote§'b§ the Executing Court as well as by the iAAQeeree--holder, the remedy available to the 'gideeree-holder against such aux obstructionist

-;is only Order XXI, Rule 97 sub-rule (1) and he cannot bypass such obstruction and insist on y -33- issuance of warrant for passe-esionAzdder'-..Crder"

21, Rule 35 with the help 'gf p§g1;i'c»e".rfofeeV,._'t'e;s:' that course would amcunt circumventing the proce'ci:3:V';:fe_VV under Order 21 Rule 97' retrieval of obstruction Aef to the decree. View on the by the Hon'ble Suprezhe decision in no way assists petitioners, inasmuch as, they c}-..aAAizn"'t.1;ir<::Ltgh a joint decree holder aririlication under Order 21 Rule as strangers to the decree, which already held are not maintainable VV"a3_ti'1.ere is no person who is a stranger to the ."d_Vecree who is alleged to have obstructed in ...the execution of the decree. Rather, in my view, these applicants, who are the %

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petitioners, infect are causing obstruction in the execution of the decree obtained by Late Nanjamma and Late Rajanna and which deoree is being executed by the tegal represehtatiVeefof* Rajanna. .~w-_

23. Learned Cbunsel for the ﬁwiitionerea has also relied upon enotherideeieion in the case N.S.S. NARA£f;émp. Vs M/S. GOLD§_I'O£~§_E'.' __'(£'>) LT£).,. AND OTHERS reporte<i--,ii'nV'P;IR._ SC 251 to contend that .~M. Order 21 Rﬁie 93 to 103 CPC is a clear scheme, '~Qhereifr"the legislature has 'veetedr right in ithe Exeeuting Court to deal with all issues relating to such matters and. that in the i'_inetant ease, the Execution Court ought to ehave ordered that an enquiry on the applications filed by the petitioners herein, e.

..35..

rather than, applications without recordinqjthenevideneer The proposition laid, dawn Tin' thier.§ecieionio have to be harmoniouslfh reao*.Qithl§another decision of Hon'hle-Sﬁereeeeeourt referred to above viz., _repoArt_e_dtV 3 sec 723, wherein, "iit}D bee ieheenihisteted that the adj of Order 21 cpc woulovtetetgleee only when the question raised have legally e§isen"between the parties and consequently such questions are relevant for l'consideretion and determination between the t~§a;£1és, Since it has been already held by me that sthet applications themselves were not "'maintainable, in View of the circumstance of 'gpetitioner viz., Premakumari, who derived such i=. right, interest and title over the schedule property through one of the joint decree ﬂr summarily dismissing ._the, °

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holder v:i.z., Nanjamma and there obstructor who has been ihnatned.' applications, the Court._belew:"w_as not adjudicating the reeerdingii the evidence as

24. eyes; the ,a£oresaie Wreasons, these RevisionuV'E?eti--i?;:i,en.e' and the Court be:I.Oi«T di'i~.e:"<:1Li'es:;1.4"i"If;:<i5"*--.initiate further steps in acct) rdaingcze _wit h' .

ii ._.1\t stage, learned Counsel for 1: the ;§e§it1¢ne:= in HRRP No.39/02 and 40/02 ei1_bmi..t~:§_vi"j'..-that some time may be given to the _Apet:'Lt._i"oners to vacate the premises and hand '--..V'e.v_er the vacant possession. The same is qiobjected to by the learned Counsel for the respondent. In View cf the feet that I have &:

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