Karnataka High Court
A.M. Subbamma W/O Late A.P. Mandanna vs A.V. Kushalappa S/O Late Palangappa And ... on 6 June, 2006
Equivalent citations: 2007(5)KARLJ79, AIR 2006 KARNATAKA 271, AIR 2006 (NOC) 1504 (KAR), 2006 (4) AIR KANT HCR 733, 2006 A I H C 2682, (2006) 46 ALLINDCAS 786 (KAR), 2006 (46) ALLINDCAS 786, (2006) ILR (KANT) 2965, (2007) 5 KANT LJ 79, (2007) 4 CIVILCOURTC 656, (2007) 4 ICC 726
Author: K.L. Manjunath
Bench: K.L. Manjunath
JUDGMENT K.L. Manjunath, J.
1. Appellant in this appeal was an objector in Exc. 15/2000 on the file of the Civil Judge (Sr. Dn.), Madikeri, which application was filed by the appellant under Order-21 Rule-97 of CPC. R-1 was the D.Hr. and R-2 to 8 were the J. Drs. before the trial court. For the sake of convenience, parties would be referred to as per their status before the trial court.
2. Kushalappa, D. Hr., was the plaintiff in O.S. 15/90 on the file of the Civil Judge (Sr. Dn.), Madikeri. The suit was filed by him for partition and separate possession of his share in respect of plaint A-Schedule property and for declaration in respect of plaint B- Schedule property. The suit filed by (sic) Kushalappa was decreed in part so far as it relates to B-schedule property and the partition in respect of A-schedule property was rejected. Against which he preferred an appeal before this Court in RFA 780/1996. During the pendency of the appeal before this Court, A.P. Mandanna who was one of the respondent-defendant and who was also the husband of the present appellant and father of R-5 to 7, died. After the death of Mandanna, his three sons on their own filed an application to come on record as legal representatives, which application came to be allowed. Subsequently, the appeal was ended in a compromise. In term of the compromise, judgment and decree of the trial court was modified. R-1 plaintiff filed an execution to execute the decree in Exc.15/2000. In the said execution petition, present appellant filed an application as an objector under Order-21 Rule-97 of CPC contending that the compromise decree passed by the High Court of Karnataka was not binding on her since she was not a party to the appeal. Before filling an application under Order-21 Rule-97 of CPC, appellant herein has filed a suit for partition before the Civil Judge (Sr.Dn.), Madikeri in O.S.142/99 contending that the compromise entered into between Kushalappa and others with three sons of the appellant does not bind her share. In the said suit, properties involved in Exc. 15/2000 are the subject matters of the suit.
3. D. Hr. Kushalappa filed his objections contending that the application filed by the appellant under Order-21 Rule-97 of CPC as maintainable. According to him, three sons of the appellant on their own came on record as the legal representatives of Mandanna and they represent the estate of deceased Mandanna and such a compromise is binding on the appellant. It is also contended that when a suit for partition is filed before the Civil Judge, Mercara on the same ground for the same relief, appellant cannot maintain an application under Order-21 Rule-97 of CPC. Trial court, after considering the case pleaded by both the parties, has dismissed the application filed under Order-21 Rule-97 of CPC by its order dated 16.1.2003. Being aggrieved by the order of the trial court in rejecting the application filed under Order-21 Rule-97 of CPC, present, appeal is filed.
4. Heard the learned Counsel for both the parties.
5. Learned Counsel appearing for the appellant re-iterating the grounds urged by him, contends that trial court has committed an error in not noticing the facts that the appellant was not impleaded as legal representatives of Mandanna in RFA 780/96 and that the compromise has been arrived at behind her back and therefore such a compromise will not take away the right of the appellant. Therefore, he requests this Court to set aside the order passed by the trial court.
6. Per contra, learned Counsel for R-1 Sri. Kariappa contends that trial court is justified in rejecting the application filed under Order-21 Rule-97 of CPC in view of the fact that a suit had already been instituted by the appellant for the same relief in O.S.142/99. Therefore, he requests this Court to dismiss the appeal.
7. Having heard the learned Counsel for the parties, only point to be considered by this Court in this appeal is whether the appellant having filed a suit for partition and separate possession, of her share in respect of the joint family properties in O.S.142/99 can maintain an application under Order-21 Rule-97 of CPC.
8. The facts of this case are not in dispute. It is an admitted fact that husband of the appellant died during the pendency of the appeal before this Court in RFA 780/96. It is also not in dispute that children of the appellant on their own had come on record in the appeal as legal heirs of A.P. Mandanna. It is also not in dispute that a compromise was entered into between the parties in RFA 780/96 for which the appellant was not a party. It is not in dispute that all the legal heirs of Mandanna were not brought on record in RFA. It is also not in dispute that sons of Mandanna were representing the estate of deceased Mandanna in the appeal.
The appellant having come to know that such a compromise decree of (sic), she has filed a separate suit, which suit is pending decision. The relief in O.S. 142/99 and the contentions in the application filed under Order-21 Rule-97 of CPC are similar. When the relief in the suit as well as in the application are one and the same, appellant cannot be permitted to pursue her remedy in two different proceedings. When she has availed the remedy of filing a suit, this Court is of the opinion that on the same set of facts appellant cannot maintain an application under Order-21 Rule-97 of CPC. Though the appellant has filed an application under Order-21 Rule-97 of CPC, said application has to be tried as an independent suit. When she has already instituted a suit in O.S.142/99 for the same relief, petitioner cannot maintain an application under Order-21 Rule-97 of CPC subsequently. If the appellant is of the opinion that D.Hr. has to be restrained from executing a decree, if at all the appellant has got any merits, she has to pursue her remedy in the suit not by way of filing a separate application. Appellant has not placed any material to show that injustice is caused to her by not bringing her on record as one of the legal representative of Mandanna and that compromise entered into between the parties in RFA has affected the family of Mandanna. So far as this point is concerned, this Court need not give its finding when the appellant has instituted a separate suit prior to filing of the execution petition by R-1 Kushalappa, this Court is of the opinion that trial court is justified in dismissing the application of the appellant. In the circumstances, this Court is of the opinion that appellant cannot maintain an application under Order-21 Rule-97 of CPC during the pendency of the earlier suit filed by her for the same relief.
9. In the result, this appeal is dismissed.
The dismissal of this appeal shall not be construed that appellant has no right to pursue the suit filed by her.