Karnataka High Court
Sri C D Rajashekar vs Sri S S Badya on 20 January, 2014
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20th DAY OF JANUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE H.BILLAPPA
WRIT PETITION NO.59416/2013 (GM-CPC)
BETWEEN:
SRI C.D. RAJASHEKAR
S/O LATE DUGGAPPAIAH
AGED ABOUT 56 YEARS
NO.70, 2ND MAIN, 6TH CROSS,
MANJUNATHANAGAR, GOWDANAPALYA,
UTTARAHALLI MAIN ROAD,
SUBRAMANYAPURA,
BANGALORE - 560 061 ...PETITIONER
(BY SRI VIDYADHARA H.N., ADVOCATE)
AND:
1. SRI S.S. BADYA
S/O LATE BADYA SHIVARAMAIAH
AGED ABOUT 85 YEARS
C/O SREE MANJUNATHA CHARITABLE
TRUST, OLD AGE HOME,
NAGASANDRA POST,
THOTADAGUDDADAHALLI,
MANJUNATHANAGAR,
BANGALORE- 560 073
2. SMT. VANI S. BADYA
D/O S. S. BADYA
AGED ABOUT 47 YEARS
R/O NO.302, 2ND MAIN,
13TH CROSS, W.O.C. 2ND STAGE,
2
BANGALORE - 560 086
3. SRI S.S.N.BADYA
S/O S.S.BADYA
AGED ABOUT 49 YEARS
R/O NO.302, 2ND MAIN,
13TH CROSS, W.O.C. 2ND STAGE,
BANGALORE - 560 086 ...RESPONDENTS
(BY SRI M.S.VARADARAJA, ADVOCATE FOR R-1
SRI HEGDE KADVE, ADVOCATE FOR R-3
R-2 NOTICE DISPENSED WITH V/O DTD. 10.01.2014)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA WITH A PRAYER
TO QUASH THE ORDER DATED 9.12.2013 PASSED BY THE
XXXVIII ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY (CCH-39) PASSED IN IA-2 FILED BY THE
OBSTRUCTEER U/O XXI RULE 67, 98, 99 R/W RULE 101
OF CPC VIDE ANNEX-J.
THIS PETITION COMING ON FOR ORDERS THIS DAY
THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition under Article 227 of the Constitution of India, the petitioner has called in question, the order dated 09.12.2013, passed by the Executing Court in Execution Case No.89/2012 on I.A.No.2 vide Annexure-J. 3
2. By the impugned order at Annexure-J, the Executing Court has dismissed I.A.No.2 filed by the petitioner.
3. Aggrieved by that, petitioner has filed this writ petition.
4. Briefly stated the facts are;
The first respondent had filed suit in O.S.No.1278/2009 for partition and separate possession of the suit schedule property. The suit came to be decreed on 01.12.2011. The third respondent challenged the decree in RFA No.13/2012. This Court by its order dated 28.02.2013 has dismissed the appeal. Thereafter, the first respondent has initiated execution proceedings in Execution case No.89/2012. In the execution proceedings, the petitioner has filed I.A.No.2 under Order 21 Rules 67, 98, 99 read with Section 101 of CPC. The Executing Court by its order dated 4 09.12.2013 has dismissed the application. Therefore, this writ petition.
5. The learned counsel for the petitioner contended that the impugned order cannot be sustained in law. He also submitted that third respondent has borrowed a sum of Rs.5,00,000/- from the petitioner by depositing the title deeds in respect of the suit schedule property. The executing court has erred while rejecting the application without holding any enquiry. Further he submitted that the petitioner being the mortgagee has interest in the property and therefore, the Executing Court was not justified in rejecting the application. He therefore submitted that the impugned order cannot be sustained in law. He placed reliance on the decision reported in AIR 1998 SC page1754.
6. As against this, the learned counsel for the first respondent submitted that the impugned order does not call for interference. He also submitted that 5 petitioner has no subsisting interest in the property and he is not in possession. Unless the obstructor is in actual possession of the property and has independent title, he cannot maintain an application under Order 21 Rule 97 of CPC. He therefore submitted that the Executing Court has rightly rejected the application and therefore, the impugned order does not call for interference. He placed reliance on the decisions of this Court and Hon'ble Supreme Court reported in ILR 2001 Kar. page 1008, AIR 1997 SC 856 and ILR 1995 Kar. page 1892.
7. I have carefully considered the submissions made by the learned counsel for the parties.
8. The point that arises for my consideration is:
Whether the impugned order calls for interference?6
9. It is relevant to note the suit in O.S.No.1278/2009 was filed by the first respondent for partition and separate possession of the suit schedule property. The Trial Court has decreed the suit on 01.12.2011 holding that the first respondent is entitled for possession of a portion of the suit schedule property. The appeal filed by the third respondent in RFA No.13/2012 has been dismissed. Thereafter, the first respondent has initiated executing proceedings in Execution case No.89/2012 for delivery of possession in terms of the decree. The petitioner has filed application contending that the third respondent has borrowed a sum of Rs.5,00,000/- by depositing the title deeds and therefore, possession cannot be delivered to the first respondent. The Executing Court taking into consideration that the petitioner is not in possession of the property and he has no right to obstruct delivery of possession to the first respondent has rejected the application.
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10. This Court in Y.Umesh vs. Smt Saroja and Others reported in ILR 2001 Kar. page 1008 has held, unless the obstructor proves that he is in actual possession of the subject matter of the execution and he has independent title, he cannot succeed.
11. Similarly, in Akkatai @ Sujata vs. Baburao Sattappa Angol reported in ILR 1995 Kar. page 1892 this Court has held, persons who are not in actual possession have no right to agitate their rights in the execution proceedings in the guise of obstruction or objection to execution.
12. In the present case, the decree is for possession. Admittedly, the petitioner is not in possession. He claims to have advanced some amount to the third respondent. His claim is against the third respondent. The petitioner cannot obstruct delivery of possession to the first respondent. Therefore, the 8 Executing Court was right in rejecting the application. The impugned order does not call for interference. There is no merit in this writ petition and therefore, it is liable to be dismissed.
Accordingly, the writ petition is dismissed.
Sd/-
JUDGE DR