Karnataka High Court
Smt. A. Indra Kumari vs Sri. Uday Kumar on 17 July, 2023
Author: P.S.Dinesh Kumar
Bench: P.S.Dinesh Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JULY, 2023
PRESENT
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE C.M. POONACHA
R.F.A. No.2116 OF 2018 (PAR)
BETWEEN:
SMT. A. INDRA KUMARI
W/O S CAZER IMANUEL
NO.07, JEEVA KRUPA
KURIMANDI ROAD
KESARE, MYSURU-570001
... APPELLANT
(BY SRI H SUNIL KUMAR, ADVOCATE)
AND
1 . SRI. UDAY KUMAR
S/O ASHIRVADAM
SINCE DEAD BY LRs
1(a) MRS SUNITA UDAY
W/O LATE UDAY KUMAR
AGED ABOUT 62 YEARS
R/AT NO.47, 2ND FLOOR,
11TH CROSS, 1ST MAIN
BM SRINAGAR MATHALLI
MYSORE 570016.
1(b) MRS BABITHA GRACE
AGED ABOUT 36 YEARS
2
R/AT NO.47, 2ND FLOOR,
11TH CROSS, 1ST MAIN
BM SRINAGAR MATHALLI
MYSORE 570016.
1(c) MRs. GILDA RACHEL
AGED ABOUT 32 YEARS
W/O Mr. J VIJAY COTTAGE
NO.46/47, RACHENAHALLI
SRK NAGAR POST
BANGALORE 560077.
2 . K G VISHWANATH
AGED ABOUT 49 YEARS
S/O LATE JAVARAIAH
DEVARAJ NILAYA,
KOTTANAGERI BEI
HASSAN DISTRICT-573101
...RESPONDENTS
(BY SRI G KRISHNAMURTHY, SENIOR ADVOCATE FOR
SRI M B RAMACHANDRA, ADVOCATE FOR R2
NOTICE TO R1 (A TO C) IS HELD SUFFICIENT V/O DTD
2.3.2023)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE ORDER DATED 14.09.2018 PASSED IN EX.NO. 66/2011 ON
THE FILE OF THE PRL.SENIOR CIVIL JUDGE AND CJM, MYSURU
DISMISSING THE PETITION FILED UNDER ORDER 21 RULE 97
OF CPC AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 18.04.2023, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, POONACHA J., DELIVERED THE
FOLLOWING:
3
JUDGMENT
The above first appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') by the Plaintiff - Decree Holder challenging the order dated 14.9.2018 passed in Execution No.66/2011 by the Principal Senior Civil Judge and CJM, Mysuru, (hereinafter referred to as the 'Executing Court'), whereunder the Executing Court has allowed the Application filed by the Applicant/Obstructor to the decree under Order XXI Rule 97 of the CPC.
2. For the sake of convenience, the parties herein are referred to as per their rank before the Trial Court.
3. The facts in brief necessary for adjudication of the above appeal are that a suit in OS No.395/2003 was filed by one Indra Kumari (hereinafter referred to as Plaintiff/Decree Holder) against her brother Udayakumar (hereinafter referred to as Defendant/Judgment Debtor) for partition and separate possession. The suit was 4 decreed vide judgment and decree dated 12.6.2008 wherein it was held that the Plaintiff and Defendant are entitled to 50% share each in the suit properties. The judgment and decree passed by the Trial Court was challenged by the Defendant in RA.No.215/2008, which appeal was dismissed. Consequently, the Plaintiff initiated final decree proceedings in FDP No.23/2008 which was allowed and the final decree for partition was drawn vide order dated 24.2.2010. To execute the said decree, the Plaintiff filed Execution No.66/2011. In the said proceedings, an application was filed on 19.1.2013 by one Javanamma under Order XXI Rule 97 of the CPC obstructing the delivery of the schedule premises to the Decree Holder and sought for dismissal of the Execution Petition.
3.1. It is the case of the Obstructor that the suit property belonged to one Ashirvadam and his wife Rathnamma who are Christians by religion and were issueless. That Ashirvadam died intestate on 19.2.1981 5 leaving behind his wife Rathnamma as his sole legal heir who inherited the property by way of intestate succession. That the said Rathnamma expired on 25.4.2001.
3.2. That Rathnamma had no issues and had fostered the Plaintiff - Indra Kumari and the Defendant - Udayakumar. That though they were fostered by late Rathnamma, they did not have any vested right over the property. That Rathnamma during her life time executed a Will on 16.3.2001 bequeathing a portion of the property to the Decree Holder and other portion/s to the Judgment Debtor and his children. That upon the death of Rathnamma, the respective persons inherited their respective portions in terms of the said bequest.
3.3. It is the case of the Obstructor that Ashirvadam and Rathnamma could not have adopted the Decree Holder and Judgment Debtor because adoption and fostering is alien to Christianity and the parties to the suit could not have inherited the suit property by way of intestate succession. That by suppressing the facts, the 6 Decree Holder in collusion with the Judgment Debtor instituted a suit for partition and separate possession for her alleged half share in the suit property, wherein the Decree Holder - Plaintiff claimed that she is the daughter of deceased Ashirvadam and Rathnamma and the Judgment Debtor was her brother. That in the said suit, false pleas of inheritance by way of intestate succession were made.
3.4. It is the specific case of the Obstructor that during the pendency of Regular Appeal, the children of the Defendant - Judgment Debtor, vide registered Sale Deed dated 26.2.2009 (Document No.15657/2008) sold the property which was bequeathed to them under the Will dated 16.3.2001 by Rathnamma to the Obstructor for valuable consideration and put her in possession and enjoyment of the property. That she is a bona fide purchaser for valuble consideration and the very suit initiated by the Decree Holder is null, void and illegal. That the father of her vendors 7 Udayakumar (the Judgment Debtor) colluded with the Decree Holder and obtained a collusive decree. Hence, prayed that the decree granted in favour of the Decree Holder is not binding on the Obstructor as it is null, void and illegal and sought for dismissal of the Execution Petition.
4. The Decree Holder filed his objections to the said IA filed on 19.1.2013 contending, inter alia, that the Obstructor is claiming through the Judgment Debtor/ Defendant and being a pendente lite purchaser is bound by the decree and sought for dismissal of the Application.
5. The Trial Court framed 3 issues for consideration. The Obstructor and Decree Holder adduced evidence. The Trial Court vide its order dated 14.9.2018 passed the following order:
"The Execution Petition is dismissed with costs.
It is held that the applicants are the absolute owners of the property as per the Sale Deed at Ex.P9."8
6. Being aggrieved the present appeal is filed.
7. Sri. Sunil Kumar, learned Counsel for the Appellant - Decree Holder contended:
i) That the Obstructor being admittedly, transferee pendente lite, the Application ought to have been dismissed;
ii) That the Trial Court erred in considering various factual aspects which tantamounts to going behind the decree which was impermissible by the Executing Court;
8. Per contra, Sri G.Krishna Murthy, learned Senior Counsel appearing for the Obstructor - Respondent No.2 contended:
i) That the Plaintiff could not have filed the suit for partition as the property was bequeathed by late Rathnamma under the Will dated 16.3.2001;9
ii) That the Obstructor filed a suit in OS No.1142/2013 wherein the Decree Holder appeared and filed an application under Order VII Rule 11 of the CPC which was allowed and the suit filed by the Obstructor was dismissed which judgment has been upheld in first appeal.
Hence, the Decree Holder is preventing adjudication of the rights of the Obstructor either in a separate suit or in the present execution proceedings.
iii) That the Obstructor having purchased the property from the legatees under the Will dated 16.3.2001 and the vendors, who were not parties to the suit, she has an independent right and is entitled to obstruct the decree which aspect has been rightly appreciated by the Executing Court and the said order is not liable to be interfered with in this first appeal.
8.1. In support of his contentions, the learned Counsel relied upon the following judgments:
i) Agsar v. Mohan Kumar1;
1
(2020) 16 SCC 230
10
ii) N.S.S.Narayana Sarma v. Goldstone
Exports (P) Ltd.,2
iii) Nooruddin v. Dr.K.L.Anand3.
9. We have considered the submissions made by both the learned Counsel for the Appellant and the learned Senior Counsel for Respondent No.2 and perused the material on record. The question that arise for consideration is:
Whether the order of the Executing Court dismissing the Execution Petition is liable to be interfered with?
10. In order to consider the question, it is necessary to notice the following admitted factual aspects:
i) OS No.395/2003 filed by the Plaintiff - Decree Holder against the Defendant - Judgment Debtor was decreed on 12.6.2008 and RA 2 (2002) 1 SCC 662 3 (1995) 1 SCC 242 11 No.215/2008 filed challenging the said judgment and decree was dismissed;
ii) FDP No.23/2008 was filed to pass a final decree consequent to the preliminary decree passed in OS No.395/2003 and by final order dated 24.2.2010 the share which was required to be allotted in favour of the Plaintiff was earmarked;
iii) Execution case No.66/2011 has been filed to execute the decree passed in OS No.395/2003 in respect of which the final decree has been drawn in FDP 23/2008;
iv) The Obstructor - Javanamma purchased a portion of the suit property vide Sale Deed dated 26.2.2009 (registered as Document No.15657/2008) from her vendors, Babita Grace and Gild Rachael, who are the daughters of the Judgment Debtor who claim to have inherited the property by virtue of the Will 12 dated 16.3.2001 (Ex.P5) executed by Rathnamma.
11. It is relevant to note that in the Will dated 16.3.2001 (Ex.P5) the property described as schedule 'A' to the Will has been bequeathed in favour of the Judgment Debtor/Udayakumar, schedule 'B' property has been bequeathed in favour of the Decree Holder - Indra Kumari and schedule 'C' and 'D' properties are bequeathed in favour of Babita Grace and Gild Rachel, respectively who are the daughters of the Judgment Debtor. The entire suit property is the subject matter of bequest under the said Will and portions of the suit property are bequeathed as noticed herein.
12. The son of the Objector - K.G.Vishwanath had purchased the schedule 'A' property under the Will - Ex.P5 from the Judgment Debtor - Udayakumar vide registered Sale Deed dated 26.2.2009 (Document No.15652/2008). The said K.G.Vishwanath had filed Application dated 7.9.2012 under Order XXI Rule 97 of the CPC objecting to 13 the execution of the decree. The said Application was dismissed by the Trial Court vide order dated 12.8.2013. The Review Petition filed by K.G.Vishwanath to review the order dated 12.8.2013 was also dismissed.
13. The Objector - Javanamma who was the purchaser of the property from the daughters of the Judgment Debtor vide registered Sale Deed dated 26.2.2009 (Document No.15657/2008) filed Application dated 19.1.2013 under Order XXI Rule 97 of the CPC. The said Application was opposed by the Plaintiff - Decree Holder. The Executing Court, vide order dated 12.8.2013 dismissed the Application filed by Javanamma, who then filed IA dated 19.8.2013 under Order XLVII Rule 1 of the CPC to review the order dated 12.8.2013. The Executing Court, vide its order dated 27.11.2013 allowed the Application filed by Javanamma and passed the following:
"The application filed by the applicant Smt. Javanamma, under Order 47 Rule 1 of C.P.C., is allowed. Accordingly, the orders dated 12.08.2013, in so far as the present applicant Smt. Javanamma is concerned, is set aside and the applicant Smt. Javanamma, is permitted to lead 14 enquiry in respect of the application filed by her under Order 21 Rule 97 of C.P.C. However, no orders as to cost."
14. Subsequently, Javanamma died and her son K.G.Vishvanath (Respondent No.2 in the present Appeal) was permitted to come on record as the legal representative of Javanamma pursuant to the order dated 21.1.2017 passed by the Executing Court. Consequently, Respondent No.2 is prosecuting the Application filed by Javanamma as Obstructor as her legal representative.
15. In the enquiry, K.G.Vishwanath examined himself as PW.1 and examined PW.2, an acquaintance to the family of Ashirwadam; PW.3, a Real Estate Agent; PW.4, a witness to the Will (Ex.P5) and PW.5, an Advocate who drafted the said Will (Ex.P5). Exs.P1 to P18 were marked in evidence. The Decree Holder examined herself as RW.1 and her husband as RW.2. Exs.R1 to R21 were marked in evidence.
16. The Executing Court while adjudicating the said IA, framed the following issues:
15
"1. Whether the applicant/obstructors prove that they have independent right over the property in dispute?
2. Whether the applicant/obstructors further prove that the decree dated 24.02.2010 in O.S. 395/2003 and the final decree passed as per Order dated 24.02.2010 in FDP 23/08 cannot be executed against them?
3. What Order?"
17. The Executing Court, after considering the case putforth by the Obstructor, recorded a finding that the Obstructor had proved execution of the Will and allowed the Application.
18. It is forthcoming from the judgment and decree dated 12.6.2008 passed in OS No.395/2003 (Ex.P3) that the Judgment Debtor had pleaded regarding execution of the Will and had also adduced his examination-in-chief. The said Will was marked as Ex.D1 in the suit. However, he did not appear for further examination-in-chief and subsequently, the Defendant remained absent and did not submit himself for cross- examination. It is forthcoming from the memorandum of appeal filed by the Defendant in RA No.215/2008 (Ex.P12) 16 that specific grounds have been urged by the Defendant with regard to the Will - Ex.D1 executed by Rathnamma. However, RA No.215/2008 was filed along with IA.No.1 for condonation of 140 days delay and the Defendant having adduced evidence on IA.No.I, the first Appellate Court vide its order dated 17.8.2009 dismissed IA.No.1 and consequently, dismissed RA No.215/2008.
19. It is forthcoming from the registered Sale Deed dated 26.2.2009 (Document No.15657/2008) executed by Babita Grace and Ms. Gild Rachael, the daughters of the Judgment Debtor in favour of the Obstructor - Javanamma that the Judgment Debtor had also signed as a witness to the said Sale Deed. Hence, during the pendency of RA No.215/2008 the Obstructor had purchased the property.
20. Having regard to the aforementioned factual position it is necessary to notice the relevant statutory provisions and the settled proposition of law.
21. Rules 97 to 102 of Order XXI of the CPC stipulate as under:
17
" 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 the upon the application in accordance with the provisions herein contained.
98. Orders after adjudication.-
(1) Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination and subject to the provisions of sub-rule (2),-
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.
(2) Where, upon such determination, the Court is satisfied that the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, order the judgment-debtor, or any person acting at his 18 instigation or on his behalf, to be detained in the civil prison for a term which may extend to thirty days.
99. Dispossession by decree-holder or purchaser.-
(1) Where any person other than the judgment- debtor is dispossessed of immovable property by the holder of a decree for the possession of such property or, where such property has been sold in execution of a decree, by the purchaser thereof, he may make an application to the Court complaining of such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.
100. Order to be passed upon application complaining of dispossession.-
Upon the determination of the questions referred to in rule 101, the Court shall, in accordance with such determination,-
(a) make an order allowing the application and directing that the applicant be put into the possession of the property or dismissing the application ; or
(b) pass such other order as, in the circumstances of the case, it may decree fit.
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 19 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.
Explanation.-In this rule, "transfer" includes a transfer by operation of law."
22. The Hon'ble Supreme Court in the case of Silverline Forum Pvt. Ltd., v. Rajiv Trust4 has held as follows:
"10. It is true that Rule 99 of Order 21 is not available to any person until he is dispossessed of immovable property by the decree-holder. Rule 101 stipulates that all questions "arising between the parties to a proceeding on an application under Rule 97 or Rule 99" shall be determined by the executing court, if such questions are "relevant to the adjudication of the application". A third party to the decree who offers resistance would thus fall within the ambit of Rule 101 if an adjudication is warranted as a consequence of the 4 (1998) 3 SCC 723 20 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 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. "
(emphasis supplied)
23. The Hon'ble Supreme Court in the case of Usha Sinha v. Dina Ram5 has held as follows:
"21. We are in respectful agreement with the proposition of law laid down by this Court in Silverline Forum [(1998) 3 SCC 723] . In our opinion, the doctrine is based on the principle that the person purchasing property from the judgment- debtor during the pendency of the suit has no independent right to property to resist, obstruct or object execution of a decree. Resistance at the instance of transferee of a judgment-debtor during the pendency of the proceedings cannot be said to be resistance or obstruction by a person in his own right and, therefore, is not entitled to get his claim adjudicated.
22. 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 5 AIR 2008 SC 1997 21 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."
(emphasis supplied)
24. In the case Agsar1 relied on by the learned Senior Counsel for second Respondent, the Hon'ble Supreme Court has held as under:
"43. Under Order 21 Rule 101, all questions including questions relating to right, title or interest in the property arising between parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives shall be determined by the court and not by a separate suit. In Shreenath v. Rajesh [Shreenath v. Rajesh, (1998) 4 SCC 543] , A.P. Misra, J. speaking for a two-Judge Bench of this Court, while interpreting the expression "any person"
in Rule 97, held thus : (SCC p. 549, para 10) "10. ... We find the expression "any person"
under sub-clause (1) is used deliberately for widening the scope of power so that the executing court could adjudicate the claim made in any such application under Order 21 Rule 97. Thus by the use of the words "any person" it includes all persons resisting the delivery of possession, claiming right in the property, even those not bound by the decree, including tenants or other persons claiming right on their own, including a stranger."
"46. In view of the settled position in law, as it emerges from the above decisions, it is evident that 22 the appellants were entitled, though they were strangers to the decree, to get their claim to remain in possession of the property independent of the decree, adjudicated in the course of the execution proceedings. The appellants in fact set up such a claim. They sought a declaration of their entitlement to remain in possession in the character of lessees. Under Order 21 Rule 97, they were entitled to set up an independent claim even prior to their dispossession. Under Order 21 Rule 101, all questions have to be adjudicated upon by the court dealing with the application and not by a separate suit. Upon the determination of the questions referred to in Rule 101, Order 21 Rule 98 empowers the court to issue necessary orders. The consequence of the adjudication is a decree under Rule 103."
(emphasis supplied)
25. In the case of N.S.S.Narayana Sarma2 relied on by the learned Senior Counsel for second Respondent, the Hon'ble Supreme Court has held as under:
"15. Provision is made in the Civil Procedure Code for delivery of possession of immovable property in execution of a decree and matters relating thereto. In Order 21 Rule 35 provisions are made empowering the executing court to deliver possession of the property to the decree-holder if necessary, by removing any person bound by the decree who refuses to vacate the property. In Rule 36 provision is made for delivery of formal or symbolical possession of the property in occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy. Rules 97 to 101 of Order 21 contain the provisions enabling the executing court to deal with a situation when a decree-holder entitled to possession of the property encounters obstruction from "any person". From the provisions 23 in these Rules which have been quoted earlier the scheme is clear that the legislature has vested wide powers in the executing court to deal with "all issues" relating to such matters. ................., particularly, the provision in Rule 101 in which it is categorically declared that 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. On a fair reading of the Rule it is manifest that the legislature has enacted the provision with a view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the decree-holder or any other person in possession of the immovable property under execution and has vested the power in the executing court to deal with all questions arising in the matter irrespective of whether the court otherwise has jurisdiction to entertain a dispute of the nature. This clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the courts seized of an execution proceeding. The court cannot shirk its responsibility by skirting the relevant issues arising in the case."
(emphasis supplied)
26. In the case of Nooruddin3 relied on by the learned Senior Counsel for second Respondent, the Hon'ble Supreme Court has held as under:
24
"8. Thus, the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree- holder and the person claiming independent right, title or interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution.
9. ........... Right to the right, title or interest of a party in the immovable property is a substantive right. But the right to an adjudication of the dispute in that behalf is a procedural right to which no one has a vested right. ........................ Adjudication under Order 21, Rules 98, 100 and 101 and its successive rules is sine qua non to a finality of the adjudication of the right, title or interest in the immovable property under execution."
(emphasis supplied) 25
27. In the case of Silverline Forum Pvt. Ltd.,4 and Usha Sinha5 the Hon'ble Supreme Court was considering a case where the Obstructor was claiming through the Judgment Debtor and was hence bound by the decree. Whereas in the case of Agsar1, N.S.S.Narayana Sarma2 and Nooruddin3 the Hon'ble Supreme Court was considering cases where the Obstructor was asserting an independent right in respect of the properties which were subject matter of execution proceedings.
28. Having regard to the settled proposition of law as noticed above, in the event the Objector is claiming through the Judgment Debtor, the application is liable to be rejected, whereas in the event the Objector is claiming an independent right dehors the Judgment Debtor, such an application will be required to be enquired into by the Executing Court so as to adjudicate upon the nature of right sought to be asserted.
29. The second Respondent - K.G.Vishwanath was asserting right in respect of a portion of the suit property 26 by virtue of the Sale Deed dated 26.2.2009 (Document No.15652/2008) which was executed by the Judgment Debtor - Udayakumar. The application dated 7.9.2012 filed by K.G.Vishwanath has rightly been rejected by the Executing Court. However vide the IA dated 19.1.2013 filed by Javanamma, she claimed right, title and interest in a portion of the suit property having acquired the same vide registered Sale Deed dated 26.2.2009 (Document No.15659/2008-09) from her vendors Ms.Babita Grace and Ms. Gild Rachael. Having regard to the admitted position that the said vendors were not parties to the suit, notwithstanding the fact that they are the daughters of the Judgment Debtor - Udayakumar, having regard to the fact that they are asserting right in respect of a portion of the suit property by virtue of the bequest made under the Will dated 16.3.2001 (Ex.P5), the said aspect has been rightly dealt with by the Executing Court and the IA dated 19.1.2013 filed by Javanamma was required to be enquired into.
27
30. It is important to note that Javanmmma is asserting right only in respect of a portion of the suit property and second Respondent - K.G.Vishwanath is a party to the present proceedings only as the legal representative of Javanamma. K.G.Vishwanath is not entitled to assert any right in his individual capacity as being the purchaser from the Judgment Debtor - Udayakumar by virtue of the Sale Deed dated 26.2.2009 (Document No.15652/2008) and he is bound by the decree sought to be executed.
31. The enquiry by the Executing Court was required to be conducted on the IA dated 19.1.2013 filed by Javanamma in so far as the portion of the property conveyed vide Sale Deed dated 26.2.2009 (Document No.15657/2008-09) in favour of Javanamma. In the said enquiry, the Obstructor was required to prove due execution of the Will dated 16.3.2001 (Ex.P5) executed by Rathnamma. Hence, the Executing Court erred in dismissing the Execution Petition.
28
32. The decree was required to be executed in respect of the suit property except the portion of the property claimed by the Obstructor - Javanamma. The Executing Court was required to adjudicate the claim made by the Obstructor - Javanamma and only if the Obstructor had proved due execution of the Will dated 16.3.2001 (Ex.P5), would she be entitled to claim right, title and interest in the property purchased by her.
33. It is forthcoming from the order dated 14.9.2008 passed by the Executing Court that the evidence adduced by the witness and scribe of the Will (Ex.P5) PW.4 and PW.5 has not been appreciated. The relevant aspects of the cross-examination of the said witnesses have also not been noticed. Having regard to the same, prima facie the finding recorded by the Executing Court holding that the Applicant is an absolute owner by virtue of the Sale Deed - Ex.P9 is erroneous and liable to be set aside.
29
34. In view of the aforementioned, the order passed by the Executing Court is required to be set aside and the matter is required to be remanded to the Executing Court to enable it to frame a suitable issue with regard to proof of due execution of the Will dated 16.3.2001 and appreciate the relevant material on record and pass suitable orders on the IA dated 19.1.2013 filed by Javanamma.
35. It is made clear that the Obstructor - K.G.Vishwanath claiming by virtue of the Sale Deed dated 26.2.2009 (Document No.15652/2008) executed by Judgment Debtor - Udayakumar will not be entitled to obstruct the execution of the decree. Obstruction to the decree vis-à-vis a portion of the suit property is required to be adjudicated only in respect of the right claimed vide IA dated 19.1.2013 filed by Javanamma by virtue of the right acquired by her, if any, vide Sale Deed dated 26.2.2009 (Document No.15657/2008-09). It is only if the Will dated 16.3.2001 is adequately proved, appropriate 30 orders are required to be passed on the Application dated 19.1.2013 filed by Javanamma. Hence the question framed for consideration is answered in the affirmative.
36. IA.I/2020 is filed by the Appellant - Applicant to direct the Respondents to maintain status quo of the plaint schedule property. The Applicant has specifically pleaded in the affidavit filed along with the application that the Respondents are demolishing the building and transporting the building materials. Photographs have been annexed along with the application in support of the same. Having regard to the averments made in the affidavit accompanying the application and in view of the apprehension expressed by the Appellant, the Respondents are required to be directed to maintain status quo of the property in their possession till disposal of the enquiry by the Executing Court.
37. IA.2/2020 is filed by the Appellant - Applicant for stay of the order dated 14.9.2018. In view of the said 31 impugned order dated 14.9.2018 being set aside, IA.2/2020 is required to be disposed of as unnecessary.
38. IA.3/2020 is filed by the Appellant - Applicant under Order XLI Rule 27 of the CPC to permit the Applicant to produce the property valuation reports pertaining to the suit property. In view of the fact that the matter has been remanded to the Executing Court, IA.3/2020 is required to be rejected reserving liberty to the Applicant to produce the document annexed along with the said IA before the Executing Court, if necessary.
39. In view of the aforementioned, we pass the following:
ORDER i. The above appeal is allowed;
ii. The order dated 14.9.2008 passed on IA in Execution No.66/2011 by the Principal Senior Civil Judge and CJM, Mysuru, is set aside;32
iii. The matter is remanded to the Executing Court to proceed further in accordance with law keeping in mind the observations made above;
iv. The parties shall appear before the Executing Court on 7.8.2023 without the requirement of issuing any fresh notice in this regard;
v. Since the Execution case is pending for more than a decade, the Executing Court shall endeavour to expeditiously dispose of the same, in any event, not later than one year from the date of appearance of the parties subject to parties fully cooperating in the proceedings.
vi. It shall be open to the Executing Court to permit the parties to file additional pleadings and/or lead any further evidence on such terms that it may deem fit, if such a request is made;
vii. IA.No.1/2020 filed by the Appellant is allowed and the Respondents are directed to maintain status quo with regard to alienation and possession of the 33 property in their possession, till the disposal of enquiry by the Executing Court;
viii. IA.No.2/2020 for stay is dismissed as unnecessary;
ix. IA.No.3/2020 is rejected reserving liberty to the Appellant to produce the documents before the Executing Court, if necessary;
x. All contentions of the parties are left open.
No costs.
Sd/-
JUDGE Sd/-
JUDGE nd