Karnataka High Court
Latha vs J. Mary on 17 February, 2023
Author: Ravi V. Hosmani
Bench: Ravi V. Hosmani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
REGULAR FIRST APPEAL NO.218 OF 2019
C/W
REGULAR FIRST APPEAL NO.217 OF 2019
IN R.F.A.NO.218/2019:
BETWEEN:
LATHA,
W/O LATE ANAND,
AGED ABOUT 42 YEARS,
R/AT NO.93, RAJAGOPAL MUDALIAR STREET,
AUSTIN TOWN, BENGALURU - 560 047.
...APPELLANT
[BY SRI MANIAN K.B.S., ADVOCATE]
AND:
1. IRUDAYA PRAKASH,
AGED ABOUT 55 YEARS,
S/O LATE JOSEPH RAJ,
NO.11, OLD CEMENT STREET,
AUSTIN TOWN MAIN ROAD,
BANGALORE-560047.
2. ANTHONYAMMAL,
MAJOR,
W/O SUSAIRAJ,
R/O C/O JOHN CHRISTI,
27TH CROSS, NANDUGADDE,
EJIPURAM, VIVEKNAGAR,
BANGALORE - 560 047.
3. LILLY, MAJOR
D/O SUSAI MARY.
4. LOURDHA MARY,
MAJOR,
W/O ARULDAS,
2
BOTH R/AT NO.669,
SHASTRINAGAR, 5TH MAIN ROAD,
OPPOSITE 13TH CROSS,
RAJENDRANAGAR, VEVEKNAGAR POST,
BANGALORE - 560 047.
5. MUNIYAMMA,
MAJOR,
FATHERS NAME NOT KNOWN.
6. SAMPA,
MAJOR,
FATHER'S NAME NOT KNOWN,
BOTH 6 AND 7 ARE R/AT
PORTION OF PROPERTY NO.11,
OLD CEMENT LANE,
AUSTIN TOWN, BANGALORE-560 047.
7. JOHN BERNET,
MAJOR,
S/O LATE JOSEPH RAJA,
R/O NO.11, OLD CEMENT LANE,
AUSTIN TOWN, BANGALORE - 560 047.
8. THE BANGALORE MAHANAGARA PALIKE,
JC ROAD, N.R. SQUARE, BANGALORE,
REP. BY ITS COMMISSIONER.
9. THE REVENUE OFFICER (EAST),
BANGALORE MAHANAGARA PALIKE,
SHANTHINAGAR, BANGALORE.
10. SHASHIDARAN, MAJOR,
S/O KODHANDAN,
NO.93, RAJAGOPAL MUDALIAR STREET,
AUSTINE TOWN, BANGALORE - 560 047.
...RESPONDENTS
(BY SRI K.S. PERIYASWAMY, ADVOCATE FOR R1;
SRI K.V. MOHAN KUMAR, ADVOCATE FOR R8 & R9;
NOTICE TO R2 TO R7 & R10 IS DISPENSED WITH]
THIS R.F.A.No.218/2019 IS FILED UNDER SECTION 96 R/W
ORDER 41 AND ORDER 21 RULE 103 OF CPC 1908 AGAINST THE
JUDGMENT AND DECREE DATED 31.10.2018 PASSED IN EX.PETITION
NO.15054/2006 ON THE FILE OF THE XXVIII ADDL. CITY CIVIL AND
SESSIONS JUDGE, MAYOHALL, BANGALORE ALLOWING THE
3
IA.NO.VIII/2016 FILED UNDER ORDER XXI RULE 97, 100 AND 104
R/W SEC. 151 OF CPC.
IN R.F.A.NO.217/2019:
BETWEEN:
LATHA,
W/O LATE ANAND,
AGED ABOUT 42 YEARS,
R/AT NO.93, RAJAGOPAL MUDALIAR STREET,
AUSTIN TOWN, BENGALURU-560 047.
...APPELLANT
[BY SRI MANIAN K.B.S., ADVOCATE]
AND:
1. J. MARY,
D/O LATE JOSEPH RAJ,
NO.11, OLD CEMENT STREET,
AUSTIN TOWN MAIN ROAD,
BANGALORE-560047.
2. ANTHONYAMMAL,
MAJOR,
W/O SUSAIRAJ,
R/O C/O JOHN CHRISTI,
27TH CROSS, NANDUGADDE,
EJIPURAM, VIVEKNAGAR,
BANGALORE-560 047.
3. LILLY MAJOR
D/O SUSAI MARY.
4. LOURDHA MARY,
MAJOR,
W/O ARULDAS,
BOTH R/AT NO.669,
SHASTRINAGAR, 5TH MAIN ROAD,
OPPOSITE 13TH CROSS, RAJENDRANAGAR,
VIVEKNAGAR POST,
BANGALORE-560 047.
5. MUNIYAMMA,
MAJOR,
FATHER'S NAME NOT KNOWN.
4
6. SAMAPA,
MAJOR,
FATHER'S NAME NOT KNOWN,
BOTH 6 AND 7 ARE R/AT
PORTION OF PROPERTY NO.11,
OLD CEMENT LANE, AUSTIN TOWN,
BANGALORE-560 047.
7. JOHN BERNET,
MAJOR,
S/O LATE JOSEPH RAJA,
R/O NO.11, OLD CEMENT LANE,
AUSTIN TOWN, BANGALORE-560 047.
8. THE BANGALORE MAHANAGARA PALIKE,
JC ROAD, N.R. SQUARE, BANGALORE.
REP. BY ITS COMMISSIONER.
9. THE REVENUE OFFICER (EAST),
BANGALORE MAHANAGARA PALIKE,
SHANTHINAGAR, BANGALORE.
10. SHASHIDARAN,
MAJOR,
S/O KODHANDAN,
NO.93, RAJAGOPAL MUDALIAR STREET,
AUSTINE TOWN, BANGALORE-560 047.
...RESPONDENTS
(BY SRI K.S.PERIYASWAMY, ADVOCATE FOR R1;
SRI N.K.RAMESH, ADVOCATE FOR R9; NOTICE IS SERVED TO R8;
NOTICE TO R2 TO R7 & R10 IS DISPENSED WITH]
THIS R.F.A.No.217/2019 IS FILED UNDER ORDER 41 RULE 5 OF
CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED 31.10.2018
PASSED IN EX.PETITION NO.15054/2006 ON THE FILE OF THE XXVIII
ADDL. CITY CIVIL AND SESSIONS JUDGE, MAYOHALL, BANGALORE
ALLOWING THE IA.NO.1/2015 FILED UNDER ORDER XXI RULE 97, 100
AND 104 R/W SEC. 151 OF CPC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 09.11.2022, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
5
JUDGMENT
Challenging order dated 31.10.2018 passed by XXVIII Additional City Civil and Sessions Judge, Mayo Hall (CCH-29), Bengaluru, in Execution Petition No.15054/2006 on I.A.no.I/2015 and IA.no.VIII/2016, these two appeals are filed.
2. Appellant herein was decree holder (hereinafter referred to as 'DHr.' for short) while respondents no.1 in respective appeals were III party objectors (hereinafter referred to as 'Objectors' for short) in Execution proceedings filed by appellant herein. Other respondents were judgment debtors (hereinafter referred to as 'JDr.' for short). For sake of convenience they shall be referred to as per their rank in execution proceedings.
3. Though impugned order dealt with two separate III party objector applications filed by two different persons, since grounds of objections, contentions urged and all other facts and circumstances being similar, based on same facts and circumstances, 6 for sake of convenience only facts of III party objector application v.i.z, I.A.no.VIII will be referred to.
4. Brief facts as stated are that, O.S.no.15588/2002 filed by DHr. against JDrs. for possession of suit property was decreed on 03.12.2005. To execute said decree, DHr. filed Ex.Petition.no.15054/2006. In said petition, respondent no.1 herein namely Irudaya Prakash J. S/o Late Joseph Raj filed I.A.no.VIII under Order XXI Rules 57, 97, 101 and 47, 29 r/w Section 151 of Civil Procedure Code, 1908 (hereinafter referred to as 'CPC', for short).
5. In affidavit filed in support of application, it was stated that Objector was residing at no.11, Old Cement Street, Austin Town Main Road, Bengaluru. DHr. was in no way connected with suit schedule property and in collusion with JDrs. with intention to defraud Objector and misled Court by getting ex-parte decree and judgment in respect of suit schedule property.
6. It was asserted that JDrs. were total strangers and their whereabouts were not known, other 7 than brother of decree holder, who are connected with suit schedule property and only with intention to defraud Objector and knock out suit schedule property. It was further stated Objector was rightful owner of suit schedule property. But, when O.S.no.15588/2002 was filed, JDrs. merely filed vakalath and did not contest suit.
7. It was stated that suit schedule property originally belonged to Sri Nathan grand father of Objectors, as it was leased to him by Bangalore Mahanagara Palike (hereinafter referred to as 'BMP' for short). He along with his wife Susai Mary were residing in it. After their death, his father Joseph Raj and after his death, Objector, his mother and sisters were residing in it without disturbance or hindrance, by paying taxes to BMP.
8. It was further stated on 24.05.2006, BMP issued notice calling upon them to pay sale consideration of Rs.14,404/- before 09.06.2006. It was further stated that said amount was paid on 28.04.2006. Accordingly, BMP issued confirmation 8 notice on 25.07.2006 calling upon them to get sale deed executed by paying necessary fees, stamp paper and rent receipt.
9. It was further stated that DHr. got ex-parte decree by filing false and frivolous suit in respect of house property suppressing material facts even though defendants nos.7 and 8 i.e., BMP and Revenue Officer had specifically stated in their written statement about Objector being in possession. It was alleged that with ulterior motive and intention, Objector was not made party to suit, to obtain decree by suppressing real facts against persons, who were strangers and had no interest in suit property.
10. It was specifically stated that defendant no.5-JDr. was not owner of suit property, but, was a tenant under Objector. As such, Objector realized about suit and impugned decree recently and immediately after enquiry, it was noticed that suit was filed and decree was obtained against wrong parties. It was stated that mother of Objector, following up litigation, did not update herself leading to impugned judgment 9 and decree and therefore, Objector was necessary party to proceedings and sought for allowing application.
11. Said application was opposed by filing objections. Based on rival contentions and taking note of averments and prayer sought in I.A.no.1/2015, trial Court clubbed both applications and framed following common issues and additional issue for determination:
Issues:
1. Whether the applicant proves that he/she has the independent right over the property in respect of which a decree in O.S.No.15588/2002 is passed by this Court on 19.12.2005?
2. Whether the applicant further proves that he/she is not bound by the decree in O.S.No.15588/2002 passed by this Court on 19.12.2005?
3. Whether the application filed by the applicant has to be allowed?
4. What order or decree?
Additional Issue
1. Whether the Decree Holder proves that she has acquired the valid and absolute right over the property through Susai Mary and legal heirs of Susai Mary have no right over the property?
10
12. Thereafter, trial Court recorded evidence wherein III party Objectors examined themselves as PW.1 respectively and got marked Exs.P1 to P3 in I.A.No.I/2015 and Exs.P1 to P6 in IA.no.VIII/2016. Smt. Latha - DHr. was examined as RW1 and got marked Exs.R1 to R30.
13. On consideration, Executing Court passed impugned order allowing I.As.no.I/2015 and VIII/2016 by holding that decree holder had no right to execute. Decree against objectors and Execution petition was not maintainable. Assailing same, DHr. is in appeal.
14. Sri K.B.S. Manian, learned counsel for appellant submitted that suit schedule property was bearing Corporation no.11, Corporation quarters, Austin town, Bengaluru. It belonged to BMP and allotted to one Peter D'Souza under tenancy agreement. After his death, name of his wife-Susai Mary was entered in record of rights. Therefore, her name was entered in corporation records. It was stated that appellant was her grand-daughter through 4 t h daughter of Susai Mary, who was under care of DHr. It was further stated that 11 DHr. widowed at young age and left behind two minor children. In order to provide for DHr., Susai Mary executed declaration and affidavit transferring rights over suit property in her favour. Thereafter, she passed away on 27.02.1994 leaving behind three daughters, who were arrayed as defendants no.1 to 3 in O.S.no.15588/2002. Defendant no.4 - Muniyamma who falsely claimed herself to be Smt.Philomena W/o late Joseph Raj, had filed objections for transfer of Khata in name of applicant. Defendant no.6 - John Bernette S/o Late Joseph Raj while defendant no.5 was indeed a tenant while defendant no.7 - Bangalore Mahanagar Palike and defendant no.8 was Revenue Officer of BMP. It was also stated that defendant no.9 - Shashidharan was brother of DHr's. It was submitted that cause of action for filing suit arose when defendant no.4- Muniyamma claiming to be Philomena Lourde Mary W/o Late Joseph Raj, filed objections for transfer of Khata in respect of suit property in name of appellant. It was further submitted that after suit came to be decreed on 19.05.2005, aforesaid Muniyamma joined with her son 12 John and daughter - Gracy challenged judgment and decree by filing Misc.no.25050/2007. Same was dismissed on 23.08.2012. Even during pendency of same, Smt. Philomena Lourde Mary along with daughter and son filed III party objectors application in Ex.Petition.no.15054/2006. During its pendency, another application came to be filed by Irudaya Prakash on 02.08.2016. The first objector's application was considered on merits and rejected on 16.08.2013 on ground that Objectors failed to establish any independent right over suit schedule property. Challenging said order, aforementioned Philomena Lourde Mary had filed RFA.no.1718/2015. Same was dismissed on 04.01.2018. During pendency of said appeal, respondent - John and J.Mary - one of his sister filed yet another III party objectors application on 15.12.2015 on virtually very same averments and grounds. However, Executing Court allowed both applications vide judgment and decree, dated 31.02.2018 against which these appeals are filed. 13
15. It was submitted that O.S.no.15588/2002 decreed declaring DHr.-Latha w/o late Anand was entitled to succeed to suit scheduled property. Smt.Philomena along with her children filed Misc.no.25050/2007 under Order IX Rule 13 for setting aside ex-parte decree. During its pendency, they also filed III party application in Ex.Petition.no.25050/2007 under Order XXI Rule 57, 97 and 101 of CPC. Same however came to be rejected on 16.08.2013.
16. Order of rejection was challenged in RFA no.1718/2015. Same was dismissed on 04.01.2018. Even III party objectors' application was dismissed on 16.08.2013. Against order of rejection, RFA no.1718/2015 was filed and same was dismissed on 04.01.2018. During pendency of said appeal two more III party objectors applications were filed by Irudaya Prakash and Smt. J.Mary respectively, virtually on verbatim averments as in earlier III party application filed by her mother Smt.Philomena, brother-John and sister Gracy. As earlier application was dismissed, which was confirmed by this Court in 14 RFA.no.1718/2015, similar application by other children of Smt.Philomena on very same averments would not be tenable.
17. It was further submitted that Smt.Philomena was arrayed as defendant no.4 in O.S.no.15588/2002 and as such represented interest of all her children. Further they did not have any independent right over suit property. Therefore, their applications under Order XXI rules 57, 97 and 101 CPC etc., were not maintainable. Without considering said aspect, impugned decree was passed.
18. In support of his submissions, DHr. referred to decision of Hon'ble Supreme Court in case of Surayya Begum (Mst) v/s. Mohd. Usman, reported in (1991) 3 SCC 114, wherein it is held under :
"9. The principle of representation of the interest of a person, not impleaded by name in a judicial proceeding, through a named party is not unknown.
A karta of a Joint Hindu Family has always been recognized as a representative of the other members of the Joint Hindu family, and so has been a trustee. In cases where the provisions of Order I, Rule 8 of the Civil Procedure Code are attracted a named party in a 15 suit represents the other persons interested in the litigation, and likewise a receiver appointed in one case represents the interest of the litigating parties in another case against a stranger. Similarly the real owner is entitled to the benefits under a decree obtained by his benamidar against a stranger and at the same time is also bound by the decision.
Examples can be multiplied. It is for this reason that we find Explanation VI in the following words in Section 11 of the Code of Civil Procedure:
"Explanation VI. -- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating."
This, of course, is subject to the essential condition that the interest of a person concerned has really been represented by the others; in other words, his interest has been looked after in a bona fide manner. If there be any clash of interests between the person concerned and his assumed representative or if the latter due to collusion or for any other reason, mala fide neglects to defend the case, he cannot be considered to be a representative. The issue, when it becomes relevant, has, therefore, to be answered with reference to the facts and circumstances of the individual case. There may be instances in which the 16 position is absolutely clear beyond any reasonable doubt one way or the other and the question can be settled without any difficulty; but in other cases the issue may have to be decided with reference to relevant evidence to be led by the parties. Surayya Begum's case is of this class while Renu Sharma's appeal belongs to the first category."
(emphasis supplied) Further, he also relied upon another decision of Hon'ble Supreme Court in Shakuntala Vasant Pahadi v/s Purushottam Vasant Pethe, reported in (2007) 3 SCC 123 it has held as under :
"4. In the present case, in spite of service of notice, the plaintiff- respondents have not appeared before this Court to contest the prayer made herein. Learned counsel for the appellants submitted that if an original tenant dies leaving behind more than one heir, it is not necessary under law to implead all the heirs in a suit for eviction but the same can be filed only against one of the heirs who could have represented interest of the deceased tenant; in other words, his interest has been looked after in a bona fide manner, but if there is any clash of interest between the person concerned and his assumed representation or if the latter due to collusion or for any other reason mala fide neglects to defend the case, he cannot be considered to be a representative. Reliance in this connection has been placed upon decision of this Court in Surayya Begum 17 (Mst) v. Mohd. Usman [(1991) 3 SCC 114]. In our view, in the absence of any allegation and proof against the mother, showing collusion with the landlord or mala fide neglecting the interest of her sons i.e. the plaintiffs, present case is squarely covered by the aforesaid decision of this Court, as such the High Court was not justified in decreeing the suit."
(emphasis supplied) Reliance was also placed on decision in Mohd. Hussain v/s Occhavlal, reported in (2008) 3 SCC 233, wherein it was held:
"13. In N.K.Mohd.Sulaiman Sahib v/s N.C.Mohd.Ismail Saheb [AIR 1966 SC 792] this Court in para 14 observed as follows: (AIR p. 796) "14. Ordinarily the court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to that rule there are certain recognised exceptions. Where by the personal law governing the absent heir the heir impleaded represents his interest in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. The court will 18 undoubtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the court. The court will also enquire whether there was a real contest in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not put forward. Where however on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of fraud or collusion or other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. This principle applies to all parties irrespective of their religious persuasion."
(emphasis supplied) And also decision in Suresh Kumar Kohli v/s Rakesh Jain, reported in (2018) 6 SCC 708, wherein Hon'ble Apex Court has held as under:
"14. The issue at hand is what would be the status of the succeeding legal representatives after the death of the statutory tenant. In this regard, it would be worthy to discuss the two capacities viz. tenancy-in-common and joint tenancy, and the rights that one holds in these two different capacities.19
Fundamentally, the concepts of joint tenancy and tenancy-in-common are different and distinct in form and substance. The incidents regarding the co-tenancy and joint tenancy are different : joint tenants have unity of title, unity of commencement of title, unity of interest, unity of equal shares in the joint estate, unity of possession and right of survivorship."
(Emphasis Supplied)
19. On above grounds, learned counsel sought for allowing appeal and for dismissal of application by issuing appropriate directions to expedite process of execution.
20. On other hand, Sri K.S.Periyaswamy, learned counsel for respondent no.1 in both appeals, submitted that originally suit property was BMP quarters no.11. Smt.Philomena was in possession of same since many decades. It was further stated that, respondent no.1 - Sri. Irudaya Prakash was son of Sri.Joseph Raj and Smt.Philomena. Claim of suit property being allotted to Peter D'Souza by BMP was utterly false. It was submitted that written statement of defendants no.7 and 8 i.e. BMP contained admission that suit property was in possession of Smt.Philomena. It was further 20 submitted that, assertion by defendants no.7 and 8 in their written statement that plaintiff was claiming under a person who himself had no interest in suit property would falsify plaintiffs' claim of being in possession.
21. It was submitted that suit property was granted to his grandfather. After his death, his only son Joseph who was married to Smt.Philomena occupied it. In meanwhile, by order dated 18.05.1978, Government of Karnataka permitted occupiers to pay consideration and on such payment, sale deed could be executed in their favour. In terms of above scheme, BMP issued notice dated 24.04.2006 to occupier of suit premises. Said notice was also issued to Smt.Philomena also. In pursuance of above notice, Smt.Philomena deposited entire sale consideration on 28.04.2006. Though defendants no.7 and 8 had stated that request application of defendant no.4 would be considered after enquiry, fact that there was denial of right under which plaintiff was claiming would falsify basis for her claim. Further, defendants no.7 and 8 also admitted to have issued notice to Smt.Philomena for paying consideration 21 amount. These circumstances would amplify fact that interests of persons other than plaintiff was involved, but which were not adjudicated while decreeing suit. On above grounds sought to justify impugned order.
22. Sri N.K. Ramesh learned counsel sought to support impugned order.
23. Heard learned counsel, perused impugned order and record.
24. From above submissions, it is clear that DHr. and Objectors are rival claimants in respect of suit property. While claim of plaintiff rests on ex-parte decree passed basis of affidavit and application of Susai Mary to BMP expressing her consent for transfer of suit property in name of decree holder. Objectors are staking claim on basis of succession to suit property through Joseph Raj who was son of Susai Mary and claiming to be in possession of suit property along with mother, brothers and sisters, after death of Joseph Raj.
25. While passing impugned order, Executing Court firstly took note of documents produced by 22 parties to support their claim namely Voter ID and Aadhar Card etc., produced by Objector. It also took note of affidavit of Susai Mary, no objection by John Bernette, application given by Susai Mary to BMP, declaration by Susai Mary to BMP, no objection petition given by Anthonyammal and Lourde Mary to BMP etc. It also referred to records in O.S.no.15588/2002 to observe that Objectors were not made parties. Thereafter, it took note of basis of claim of DHr. in suit and weighed them against claims of Objectors to arrive at conclusion that Objectors were necessary parties to suit and since they were not made parties, decree could not be executed against them. It also held that DHr. failed to produce any valid document of title to substantiate transfer of right in respect of suit property. While arriving at such conclusion, Executing Court observed that there were no records to substantiate any right in favour of Susai Mary or BMP recognizing accrual of any right in favour of Susai Mary, perhaps referring to written statement of BMP. Even insofar as contention of DHr. about maintainability of 23 Objectors applications in view of dismissal of Misc.Petn. filed by their mother and other brother and sister, it has observed that Objectors were not claiming any right through their mother, brother or sister, but independent right as children of Joseph Raj. But, BMP did not recognize right of any one else than Sri. Nathan @ Susai Nathan as lessee of suit property and had called both Smt.Philomena and also Smt.Latha to produce documents in support of their respective claims. Therefore said reason would defeat claim of applicants also.
26. Further, it has also held that there were no valid documents executed by Susai Mary, by which transfer of valid title could be inferred in favour of DHr. and Objectors were necessary parties to suit. As only one brother was arrayed, decree couldn't be executed against objectors. But said conclusion is without considering documents produced by DHr. namely, Ex.R9 to Ex.R27. When there was no dispute about fact that Susai Mary was wife of Susai Nathan, even Anthonyammal and Lilly @ Lourde Mary being children 24 of Susai Nathan along with Joseph Raj and Shantha Mary not in dispute. DHr. was daughter of Shantha Mary and thus grand daughter of Susai Mary is also not in dispute. While trial court decreed suit by considering claim of plaintiff under Exhibits.R9 to R27, strangely, Executing Court erroneously re-appreciated evidence based on which suit was decreed to conclude that DHr. failed to establish valid right/title in respect of suit property, while Objectors succeeded in establishing their independent right over suit properties as children of Joseph Raj.
27. While arriving at such conclusion, trial Court failed to notice fact that defendant no.4 in O.S.no.15588/2002 was none other than mother of Objectors, who was arrayed as party, since Joseph Raj had died earlier. Therefore, she was also one among those claiming right in respect of suit property along with others, even if she could not be considered as head of family. Hon'ble Supreme Court in Mohd. Hussain's case (supra) held as follows: 25
"13. In N.K.Mohd.Sulaiman Sahib v. N.C. Mohd. Ismail Saheb [AIR 1966 SC 792] this Court in para 14 observed as follows: (AIR p. 796) "14. Ordinarily the court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to that rule there are certain recognised exceptions. Where by the personal law governing the absent heir the heir impleaded represents his interest in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. The court will undoubtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the court. The court will also enquire whether there was a real contest in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not put forward. Where however on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of fraud or collusion or other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the 26 estate, even though other persons interested in the estate are not brought on the record. This principle applies to all parties irrespective of their religious persuasion."
(emphasis supplied) From a bare reading of the aforesaid observation of this Court in the abovementioned decision, it is clear that ordinarily the court does not regard a decree binding upon a person who was not impleaded in the action. While making this observation, this Court culled out some important exceptions:
(i) Where by the personal law governing the absent heir, the heir impleaded represents his interest in the estate of the deceased, the decree would be binding on all the persons interested in the estate.
(ii) If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate.
(iii) The court will also investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the court. Therefore, in the absence of fraud, collusion or other similar grounds, which taint the decree, a decree passed against the heirs impleaded binds the other heirs as well even though the other persons 27 interested are not brought on record."
(emphasis supplied) Likewise, it held in Shkuntala Vasant Pahadi's case (supra) as under:
"4. In the present case, in spite of service of notice, the plaintiff- respondents have not appeared before this Court to contest the prayer made herein. Learned counsel for the appellants submitted that if an original tenant dies leaving behind more than one heir, it is not necessary under law to implead all the heirs in a suit for eviction but the same can be filed only against one of the heirs who could have represented interest of the deceased tenant; in other words, his interest has been looked after in a bona fide manner, but if there is any clash of interest between the person concerned and his assumed representation or if the latter due to collusion or for any other reason mala fide neglects to defend the case, he cannot be considered to be a representative. Reliance in this connection has been placed upon decision of this Court in Surayya Begum (Mst) v/s Mohd. Usman [(1991) 3 SCC 114]. In our view, in the absence of any allegation and proof against the mother, showing collusion with the landlord or mala fide neglecting the interest of her sons i.e. the plaintiffs, present case is squarely covered by the aforesaid decision of this Court, as such the High Court was not justified in decreeing the suit."28
(emphasis supplied)
28. On perusal of entire application and affidavit averments, there is absolutely no allegation of conflict of interests made against defendant no.4 - mother of Objectors and there is also no allegation of fraud or collusion or malafide against her. Therefore, decree obtained by arraying any one of legal heirs would continue to bind all legal heirs. Consequently, observations of Executing Court, regarding Objectors being necessary parties and decree being in-executable against them due to their non arraying as party to suit, would be erroneous. Contention of learned counsel for DHr. that Executing Court had erroneously gone behind decree would be evident calling for interference.
29. Further, observation of Executing Court that DHr. failed to prove any exclusive right over suit property was in light of it's finding that Objectors had some right over suit property. Since said reason held to have been lost in view of decree, unless III party objectors established exclusive and substantive rights 29 over suit property, they could not maintain application as Objectors.
30. Further, Objectors have averred that they were residing in suit property along with their mother, brothers and sisters. Mother and brother were parties to suit as defendants no.4 and 6. After passing of decree, they sought for setting aside of ex-parte decree and for restoration of suit, which came to be dismissed. Thereafter, they did not challenge said order or judgment and decree passed in O.S.no.15588/2002.
31. On other hand, defendant no.4 along with her two children v.i.z., Johnson (John) and Gracy filed Objector application under very same provisions as in present case, i.e. Order XXI Rules 57, 97 and 101 of CPC. Averments in application were verbatim as in Objector's applications under consideration herein i.e. I.A.no.I/2015 as well as I.A.no.VIII/2016.
32. Objector's application filed by Smt.Philomena, Johnson and Gracy came to be dismissed on 16.08.2013. Said order was also challenged before this 30 Court in RFA No.1518/2015. But same was dismissed on 04.01.2018 on ground of being barred by limitation.
33. As neither JDrs. nor Objectors questioned judgment and decree in O.S.no.15588/2002, it has to be held that they concede to decree on merits and are not questioning right or interest of DHr. herein in respect of suit property. Such being case, observation by Executing Court that DHr. failed to establish exclusive right would be contrary to record.
34. There is yet another faulty finding of Executing Court. Referring to Voter Identity Cards and Aadhar Cards of Objectors, it held that they established their possession over suit property. However said finding is without reference to Voter Identity card- Ex.R5 and Voter's Lists - Ex.R15 to 18 produced by DHr. Further, when Objectors claimed that defendant no.5 was their tenant, his non-examination would attract adverse inference about their possession over suit property. Therefore, finding of Executing Court about Objectors being in possession of suit property has to be held as without basis or justification. 31
35. Lastly, provisions under which present applications are filed are Order XXI Rules 57, 97, 101, 47 and 29 of CPC.
Firstly, Rule 29 of Order XXI of CPC is applicable only when suit between JDr. and DHr. which factual situation is absent in instant case.
Secondly, Rule 47 of Order XXI of CPC applies in case of attachment of share of JDr. and others in movables, by mandating prior notice to JDrs. Even said situation is absent in instant case. Thirdly, Rule 57 of Order XXI of CPC provides for determination of attachment after dismissal of application for execution of decree. Since Objectors have also invoked Rule 101, even if application is considered as one invoking Rule 58 of Order XXI of CPC, they would invite rejection on merits, for aforementioned reasons.
Likewise, Rule 97 of Order XXI of CPC can be invoked only by DHr. or auction purchaser, which situation is clearly absent in instant case. Application by anyone else would not be maintainable [Jesaraj Ghasimal Betal Vs. Ahammad Hussein reported in ILR 1986 Kar. 2647].
36. Insofar as jurisdiction of Executing Court under Section 47 of CPC, it is settled law that Executing Court cannot go behind decree unless it is shown that it 32 is passed by a Court having inherent lack of jurisdiction, which would make it a nullity. Hon'ble Supreme Court in case of ONGC Ltd. v. Modern Construction & Co., reported in (2014) 1 SCC 648.
"18. There can also be no quarrel with the settled legal proposition that the executing court cannot go behind the decree. Thus, in absence of any challenge to the decree, no objection can be raised in execution.
(Vide Bhawarlal Bhandari v. Universal
Heavy Mechanical Lifting
Enterprises (1999) 1 SCC
558, Dhurandhar Prasad Singh v. Jai
Prakash University (2001) 6 SCC
534, Rajasthan Financial Corpn. v. Man Industrial Corpn. Ltd. (2003) 7 SCC 522, Balvant N. Viswamitra v. Yadav Sadashiv Mule (2004) 8 SCC 706 and Kanwar Singh Saini v. High Court of Delhi (2012) 4 SCC 307."
(emphasis supplied)
37. In instant case decree under execution was passed on 03.12.2005 and Execution Petition filed on 28.03.2006 has seen extensive dilation due to Misc.Petn.no.25050/2007 filed on 26.03.2007 by Smt.Philomena and John Bernette (Defendants no.4 and
6), which came to be dismissed on 22.08.2012. In meanwhile Smt.Philomena along with her son John and 33 daughter Gracy filed Objector application in Execution proceedings on 10.03.2008.
38. On 05.12.2015, Ex.Petn.no.15054/2006 was posted for final orders. Thereafter, I.A.no.I was filed on 15.12.2015 by J.Mary, daughter of Smt.Philomena. It was dismissed on 23.07.2016. In meanwhile, RFA no.1718/2015 was also filed on 17.12.2015. Same was dismissed on 04.01.2018.
39. Perhaps to cover up dismissal of I.A.no.I on 23.07.2016, I.A.no.VIII was filed by another son of Smt.Philomena namely Irudaya Prakash. It would be relevant to reiterate that all three Objectors applications are filed on verbatim pleadings and assertions. Interestingly, I.A.no.I though rejected earlier by order dated 23.07.2016, same was allowed along with I.A.no.VIII.
40. Consequently, a decree sought to be executed from year 2006 has ended being dragged up for more than 16 years. Hon'ble Supreme Court has in Rahul S. 34 Shah v/s Jinendra Kumar Gandhi, reported in (2021) 6 SCC 418, issued following directions:
"42.8. The court exercising jurisdiction under Section 47 or under Order 21 CPC, must not issue notice on an application of third party claiming rights in a mechanical manner. Further, the court should refrain from entertaining any such application(s) that has already been considered by the court while adjudicating the suit or which raises any such issue which otherwise could have been raised and determined during adjudication of suit if due diligence was exercised by the applicant.
42.9. The court should allow taking of evidence during the execution proceedings only in exceptional and rare cases where the question of fact could not be decided by resorting to any other expeditious method like appointment of Commissioner or calling for electronic materials including photographs or video with affidavits.
42.10. The court must in appropriate cases where it finds the objection or resistance or claim to be frivolous or malafide, resort to sub-rule (2) of Rule 98 of Order 21 as well as grant compensatory costs in accordance with Section 35-A. 42.11. Under Section 60 CPC the term "... in name of the judgment-debtor or by another person in trust for him or on his behalf" should be read liberally to 35 incorporate any other person from whom he may have the ability to derive share, profit or property.
42.12. The executing court must dispose of the execution proceedings within six months from the date of filing, which may be extended only by recording reasons in writing for such delay.
42.13. The executing court may on satisfaction of the fact that it is not possible to execute the decree without police assistance, direct the police station concerned to provide police assistance to such officials who are working towards execution of the decree. Further, in case an offence against the public servant while discharging his duties is brought to the knowledge of the court, the same must be dealt with stringently in accordance with law."
(Emphasis supplied)
41. In view of above factual and legal position, point for consideration is answered in negative. Consequently, following:
ORDER i. Appeals are allowed.
ii. Impugned judgment and decree passed by XXVIII Additional City Civil and Sessions Judge, Mayo Hall (CCH-
29) Bengaluru, in Execution Petition 36 No.15054/2006 on I.A.no.I/2015 and IA.no.VIII/2016 are set-aside.
iii. I.As.no.I/2015 and VIII/2016 are dismissed with costs of Rs.25,000/-
each.
iv. Execution Court shall proceed to conclude execution proceedings by following directions issued by Hon'ble Supreme Court in Rahul S. Shah v/s Jinendra Kumar Gandhi, reported in (2021) 6 SCC 418 within three weeks.
Sd/-
JUDGE GRD