Karnataka High Court
Sri. Champalal vs Smt. A V Venkatamma on 2 September, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
CIVIL REVISION PETITION NO.131 OF 2011
BETWEEN:
SRI. CHAMPALAL
SINCE DECEASED REPRESENTED BY L.R.
SMT. KELI BAI,
RESIDING AT NO.30, II CROSS,
MALLESWARAM,
BANGALORE-560 003
SINCE DECEASED REPRESENTED BY LRs.,
1(a) SRI. KANTILAL
S/O LATE SRI. CHAMPALAL
AGED ABOUT 69 YEARS,
RESIDING AT NO.30, II CROSS,
MALLESWARAM,
BANGALORE-560003
1(b) SRI. JAICHAND
S/O LATE SRI. CHAMPALAL
AGED ABOUT 69 YEARS,
RESIDING AT NO.30, II CROSS,
MALLESWARAM,
BANGALORE-560003
SINCE DECEASED REP. BY LRs
1(b)(a) SRI SHRAVAN KUMAR
S/O LATE SRI JAICHAND
AGED ABOUT 43 YEARS,
RESIDING AT NO.141,
2
PIPADA COMPLEX,
COCONUT AVENUE ROAD,
MALLESWARAM, BANGALORE-560003.
1(b)(b) SRI NAVRATHAN KUMAR
S/O LATE SRI JAICHAND
AGED ABOUT 26 YEARS,
RESIDING AT NO.141,
PIPADA COMPLEX,
COCONUT AVENUE ROAD,
MALLESWARAM, BANGALORE-560003.
1(b)(c) SMT. HARSHA
W/O VEER CHAND
D/O LATE SRI JAICHAND
AGED ABOUT 45 YEARS,
RESIDING AT NO.9,
II CROSS, III MAIN,
NEAR ANJANAPPA LAYOUT,
HORAMAVU MAIN ROAD,
BANASWADI, BANGALORE NORTH,
KALYAN NAGAR, BANGALORE-560043.
1(b)(d) SMT. ARCHANA
W/O VINOD KUMAR JAIN
D/O LATE SRI JAICHAND
AGED ABOUT 41 YEARS,
RESIDING AT NO.66 & 67,
I MAIN ROAD, NEHRU NAGAR,
BANGALORE-560 020.
1(b)(e) SMT. PREETI
W/O ARUN SAKLECHA
D/O LATE SRI JAICHAND
AGED ABOUT 33 YEARS,
RESIDING AT NO.5,
RUKMINI COLONY,
ANNASWAMY MUDALIAR
ROAD CROSS,
SHIVAN CHETTY GARDEN,
ULSOOR LAKE,
BANGALORE-560042.
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1(c) SRI. BALWANTH KUMAR
S/O LATE SRI. CHAMPALAL
AGED ABOUT 49 YEARS,
RESIDING AT NO.30, II CROSS,
MALLESHWARAM,
BANGALORE-560003
1(d) PISTA BAI
W/O LATE MAUDANLAL
AGED ABOUT 71 YEARS,
RESIDING AT 2ND MAIN ROAD,
PALACE GUTTAHALLI, BANGALORE.
1(e) SRI. PRAKASH BAI
S/O LATE S.V. PRAKASH
AGED ABOUT 66 YEARS,
RESIDING AT C/O PRAKASH SILK KENDRA,
M.G.ROAD, CHIKMAGALUR.
1(f) KOUSHALYA BAI
W/O LATE PRAKASH CHAND
AGED ABOUT 60 YEARS,
RESIDING AT NO.732/2, T.H.ROAD,
THIRVATHUR, CHENNAI-19.
1(g) PADMA BAI
W/O RECKCHAND,
AGED ABOUT 56 YEARS,
RESIDING AT NO.13, 6TH CROSS,
S.P.EXTENSION, BENGALURU-3.
1(h) NIRMALA BAI
W/O VINOD KUMAR
AGED ABOUT 54 YEARS,
RESIDING AT B.G.LAYOUT,
3RD CROSS, MANDYA.
1(i) SHAKUNTALA
W/O JAWARILAL
AGED ABOUT 52 YEARS,
RESIDING AT PRAJWAL APARTMENTS,
29/39, 1ST CROSS, GAVIPURAM EXTENSION,
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BULL TEMPLE ROAD CROSS,
BENGALURU-19.
...PETITIONERS
(BY SRI. PARAS JAIN, ADVOCATE)
AND:
SMT. A.V. VENKATAMMA
D/O ANEKAL VEERAKPPA
SINCE DEAD BY HER
LEGAL REPRESENTATIVES
a) VENKATASHAMAIAH,
AGED ABOUT 41 YEARS,
b) M.RAVI
AGED ABOUT 35 YEARS
SINCE DECEASED
REPRESENTED BY HIS LRS.,
1. SMT. ANJALI,
W/O LATE SRI M. RAVI,
MAJOR, RESIDING AT
R.R. NAGAR, CHANSANDRA
UTTRAHALLI,
KENGERI MAIN ROAD,
BANGALORE-560 098.
2. MASTER KUSHAL,
S/O LATE SRI M. RAVI,
MINOR REP. BY NATURAL GUARDIAN
AND MOTHER
SMT. ANJALI, RESIDING AT
R.R. NAGAR, CHANSANDRA,
UTTRAHALLI,
KENGERI MAIN ROAD,
BANGALORE-560098
3. MIS JEVATHA,
D/O LATE SRI M. RAVI,
MINOR DAUGHTER REP. BY NATURAL GUARDIAN
5
AND MOTHER SMT. ANJALI,
RESIDING AT R.R. NAGAR,
CHANSANDRA UTTRAHALLI,
KENGERI MAIN ROAD,
BANGALORE-560 098.
c) M.SRINIVAS
AGED ABOUT 30 YEARS
Respondents (a), (b) and (c) ARE SONS OF LATE
SRI.MUNINANJAPPA
RESIDING AT CHANNASANDRA,
UTTARA HALLI HOBLI,
SUBRAMANYAPURA POST,
BANGALORE-560 011.
...RESPONDENTS
(BY SRI. D.R.RAVISHANKAR, SENIOR ADVOCATE ALONG WITH
SMT. SRI RAJASHEKAR, ADVOCATE FOR RESPONDENT
NO.1(b)(1 to 3) (THROUGH VC);
SRI. S. SHANKER SHETTY, ADVOCATE FOR RESPONDENT
NO.1(a AND c)
CAUSE TITLE IS AMENDED VIDE COURT ORDER DATED
25.02.2015, 01.04.2016 AND 25.02.2020)
THIS CRP IS FILED UNDER SECTION 115 OF THE CIVIL
PROCEDURE CODE, 1908, FILED AGAINST THE JUDGMENT
DATED 11.04.2011 PASSED IN EX.CASE NO.132/1980 ON THE
FILE OF THE COURT OF XIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE CITY (C.H No.-18), ISSUE
DELIVERY WARRANT WITH NECESSARY POLICE HELP AS
PRAYED FOR.
THIS CRP HAVING BEEN HEARD AND RESERVED ON
24.06.2022 COMING ON FOR 'PRONOUNCEMENT OF ORDERS'
THIS DAY, THE COURT PASSED THE FOLLOWING:
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ORDER
This Revision Petition is filed by an objector since deceased and represented by his legal representatives in Execution Petition No.132/1980 on the file of XIX Additional City Civil and Sessions Judge, Bangalore, challenging an Order dated 11.04.2011 passed therein, by which, the Executing Court issued a delivery warrant with police help, to deliver possession of the decreed property.
2. The case on hand has a chequered history and in order to ward off any confusion regarding the array of parties, they shall be referred by their names. The petitioner herein is Sri. Champalal, who is since deceased and was initially represented by his wife, Smt.Keli Bai, and after her death, was represented by his children. The facts that can be gathered from proceedings till date are recorded below:
3. A suit in O.S.No.544/1959 was filed by Smt. A.V.Venkatamma against Smt. Lakshmamma, Sri Seethappa, Sri Sampangi, Sri Muniveerappa, Sri Phailwan 7 Muniswamappa and Smt. Rukminibai before the Additional Second Munsiff, Bangalore, for declaration of title and for mandatory injunction directing the defendant Nos.1 and 2 to demolish the unauthorized construction put up by them and permanent injunction against defendant Nos.3, 5 and 6 restraining them from putting up any construction on the plaint schedule land and for delivery of possession of the vacant sites to the plaintiff. Subsequently, plaint was amended and prayer (e) of the plaint was substituted by seeking mandatory injunction against the defendant No.3 also directing him to demolish the unauthorized construction put up by him. The suit property bearing site Nos.33 and 40 situate in Sy.No.8 of Jodiranganathapura village, Bangalore North Taluk, which were adjoining to each other and measured 45 feet x 60 feet and were bound on the East, West and South by road/s and on the North by Site Nos.34 and 39. The said Smt. A.V.Venkatamma claimed that the suit schedule property was purchased by her from Sri M.Muniveerappa in terms of a sale deed dated 15.12.1951. It was claimed that 8 Smt.Lakshmamma and Sri Seethappa in the said suit, though having no right, had put up structures in two different portions of the suit property overnight and therefore, the relief of declaration and other reliefs were sought for. The plaintiff further alleged that subsequent to the filing of the suit, Sri Phailwan Muniswamappa and Smt. Rukmini Bai encroached upon the suit land by putting up construction in the portions demarcated as 'NBPN' and 'NPGO' in the plaint sketch .
4. The aforesaid Smt.Lakshmamma, Sri Seethappa and Smt.Rukmini Bai contested the suit and contended that they did not know that Smt.A.V.Venkatamma was either the owner or in possession of the property demarcated as 'ABCD' in the sketch attached to the plaint. They contended that the suit sketch was not correct. Smt.Lakshmamma claimed that she was the owner of the vacant site bearing No.1/1 situate at Jodiranganathapura village having purchased it from Sri M. Muniveerappa in terms of a sale deed dated 9 12.11.1953. Mr.Seethappa claimed that he purchased the site bearing No.42 in terms of a sale deed dated 27.02.1954 from Sri Nanjappa, while Smt.Rukmini Bai claimed that she had purchased site No.3 from Sri Muniveerappa in terms of a sale deed dated 18.05.1953. They all claimed that they had constructed respective houses and were residing therein. Alternatively, they claimed that they were all bona fide purchasers for value without notice of the sale in favour of Smt. A.V.Venkatamma. They contended that the boundaries and measurement of the suit schedule property differed from the properties which were in their possession.
5. Amongst the defendants, Sri Sampangi, Sri Muniveerappa and Sri Pailwan Muniswamappa did not contest the suit.
6. Based on the aforesaid pleadings, the Trial Court framed the following issues:
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"a. Does Plaintiff, prove her title to the land comprised in 'ABCD' or any portion thereof as per sketch?
b. Does Plaintiff further prove her possession and that the Defendant-1 by overnight encroached upon the space marked as 'GHKD' in the suit sketch?
c. Does Plaintiff prove that subsequent to the filing of the suit, Defendant-VI has also encroached upon the suit land in the place marked 'NPCO' by putting up construction?
d. Does Plaintiff prove that her possession of the suit property sought to be interfered with by Defendant-III?
e. Whether the suit is bad for multifariousness and misjoinder of causes of action?
f. Is Plaintiff entitled to declaration, possession, Mandatory and Permanent injunction sought?
g. What Decree?
The following Additional issue was framed on 13.04.1962:
"(h). Whether this Court has jurisdiction to try this suit in view of Sec. 3 and other provisions of Mysore Personal and Miscellaneous Inams Abolition Act ?"11
One of the witnesses examined in the suit by Smt.Lakshmamma, was Sri Champalal, the husband of Smt. Keli Bai. He was examined as DW.4.
7. The Trial Court dismissed the suit in terms of its Judgment and Decree dated 16.01.1965.
8. Aggrieved by the dismissal of the suit, Smt. A.V.Venkatamma filed in R.A.No.108/1965 before the Civil Judge, Bangalore District (henceforth referred to as 'the First Appellate Court'). During the course of the appeal, she gave up her claim against Sri Seethappa. During the pendency of the appeal, Sri Champalal, the husband of the deceased petitioner - Smt. Keli Bai, purchased the property bearing Corporation Nos.83/43 and 83/1 (old No.1/1) from Smt.Lakshmamma in terms of a sale deed dated 05/06.04.1963. The said Sri Champalal died thereafter. The First Appellate Court allowed the appeal in R.A.No.108/1965 in terms of its Judgment and Decree dated 18.07.1966, set aside the Judgment and Decree of the Trial Court and decreed the suit in O.S.No.544/1959 12 and declared that the plaintiff was the owner of the suit property and directed the defendant Nos.1, 3, 5 and 6 to remove the structures put up by them and place the plaintiff in possession of the suit property.
9. An Execution Petition in Ex.No.470/1969 was filed before the Principal I Munsiff, Bangalore, which was renumbered as Ex.No.1045/1976 and after constitution of the City Civil Court, Bangalore, it was renumbered as E.P.No.132/1980. Later, Sri Champalal filed a suit in O.S.No.2322/1983 before XV Additional City Civil Judge, Bangalore City, challenging the identity of the property claimed by the decree holder in R.A.No.108/1965 and for perpetual injunction restraining the decree holder from executing the decree granted in the said appeal. The Executing Court in terms of the Order dated 03.08.1981, appointed a commissioner, who visited the property and thereafter filed his report dated 07.12.1981 stating that "The premises was identified by me with the help of the sketch and as identified by the Judgment-Debtor". Later, 13 the legal representative of Smt.Lakshmamma filed an application under Section 47 read with Section 151 of the CPC., for dismissal of the execution petition with costs, which was dismissed by the learned XVI Additional City Civil Judge, Bangalore, on 08.01.1985 which became final. Subsequent thereto, the suit filed by Sri Champalal in O.S.No.2322/1983 was dismissed on 01.04.1987. Thereafter, Smt. Keli Bai, the wife of deceased Sri Champalal, filed RFA No.519/1987 before this Court against the legal representative of the decree holder-Smt. A.V.Venkatamma and Smt. Lakshmamma, which was dismissed by this Court by order dated 21.09.1999. Despite the dismissal of RFA No.519/1987, Smt. Keli Bai filed an application under Order XXI Rule 35 read with Sections 47 and 115 of the CPC in Execution No.132/1980 to declare that the decree obtained in O.S.No.544/1959 was a nullity and therefore inexecutable and hence prayed for dismissal of the execution petition. The Executing Court rejected the application with exemplary cost of Rs.1,000/- to the decree holder in terms of the Order dated 14 21.04.2001. This was questioned by Smt. Keli Bai in CRP No.2242/2001 before this Court. This Court in terms of the Order dated 21.06.2001, dismissed the revision petition with cost of Rs.10,000/-. Smt. Keli Bai filed review petition No.715/2001 for review of the Order dated 21.06.2001 passed in CRP No.2242/2001 which was also rejected in terms of the Order dated 08.02.2002.
10. Later, Smt. Keli Bai filed an application under Order XXI Rule 97 of the CPC in Ex.Case No.132/1980 contending that the decree holder in O.S.No.544/1959 was trying to execute the decree in respect of a property which was not the suit property. The said application was dismissed by the Executing Court on 31.08.2001. Aggrieved by such dismissal, Smt. Keli Bai filed R.F.A. No.792/2001 which was dismissed by this Court in terms of an elaborate Judgment dated 14.03.2002, where it was observed as follows:
"Though a faint attempt was made by the learned counsel for the appellant to show that the property claimed by the deceased Champalal is somewhat 15 different from the one involved in the suit filed by Smt.A.V.Venkatamma against Smt.Lakshmamma which has been decreed in R.A.108/65, but I am unable to accept this contention. There is absolutely no merit in the said contention of the learned counsel for the appellant"
11. This Court while dismissing the appeal held as follows:
"In the result therefore, this appeal filed by the appellant is liable to be dismissed and it is accordingly dismissed. It is however made clear that the respondent decree holder will be put in possession of the property in accordance with law, by the executing court, if the identity of the property in regard to which the decree holder had obtained the decree is satisfactorily established. That is to say if the identity of the property in regard to which the decree holder has obtained the decree is reasonably and satisfactorily established, the decree holder will be put in possession of the property in accordance with law, but not otherwise."
12. Based on the above, the Bailiff visited the spot and drew a mahazar on 19.06.2002. The Executing Court trashed the mahazar on the ground that the bailiff had 16 drawn the mahazar not as per the site numbers and the boundaries mentioned in the schedule of the execution petition and decree but was drawn in respect of the property shown by the decree holder who is since deceased and represented by her legal representatives. The Executing Court held that the sites claimed by the decree holder cannot be identified by survey number and site number unless the current corporation numbers were furnished. It went ahead and held that the decree that was granted was in respect of a road which lay between site Nos.33 and 40 and therefore the decree holder cannot be put in possession of that property. The Executing Court held that whenever a delivery warrant was issued by it, the decree holder took the bailiff to different places and the bailiff as well as Court Commissioner drew mahazars in respect of different properties. It held that the bailiff and Court Commissioner did not identify the property belonging to the decree holder but they depended on the decree holder to identify the property. Thus, it held that the decree holder had failed to establish the identity of the 17 property. The Executing Court therefore dismissed the execution petition in terms of the order dated 14.11.2002.
13. Feeling aggrieved by the said order, the legal representatives of the decree holder, Smt. A.V.Venkatamma filed CRP No.1148/2003 before this Court. In this revision petition, a memo was filed to delete
(i) Smt.Lakshmamma since deceased and represented by her legal representative, namely, Sri Markandeya, (ii) Sri Sampangi and (iii) Sri Phailwan Muniswamappa since deceased and represented by his legal representative, namely, Sri Dasappa, on the ground that they were not necessary parties. The same was allowed in terms of the Order dated 13.01.2003. As a result of this, only the revision petition was pursued as against Smt. Rukmini / Smt. Rukmini Bai. This Court in terms of the Order dated 08.01.2004, allowed the revision petition and set aside the order dated 14.11.2002 passed by the Executing Court on the following terms:
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"The matter is remanded to the executing court to execute the decree in accordance with law without going into the question of identity of the schedule property as the said question has already been determined in an appeal and it had attained finality. It is made clear that it would not be open for any of the defendants or anyone claiming under them to raise a dispute under Order 21 Rule 97 C.P.C on the ground of identity of the schedule property."
14. In the meanwhile, the legal representatives of the decree holder - Smt. A.V.Venkatamma, sought permission of the Advocate General to initiate criminal contempt under Section 15(1)(b) of the Contempt of Court Act, 1971 against Smt.Keli Bai as well as her counsel Mr.Paras Jain. The Advocate General in terms of his order dated 03.08.2002, granted permission to initiate contempt against the deceased petitioner herein - Smt. Keli Bai but rejected the request as against her Advocate, Mr. Paras Jain. Consequently, a contempt petition in Criminal CCC No.61/2002 was initiated by the legal representatives of the decree holder against Smt. Keli Bai. Later a criminal 19 contempt in CCC (Criminal) No.79/2002 was filed by the Registrar General against Mr. Paras Jain, Advocate. In Criminal CCC No.61/2002, a Division Bench of this Court framed charge against the petitioner - Smt. Keli Bai and after trial, found her guilty of criminal contempt under Section 2(c)(ii) and 2(c)(iii) of the Contempt of Courts Act, 1971 (for short, 'the Act of 1971') and accordingly, in terms of the Order dated 19.11.2008, sentenced her to pay a fine of Rs.2,000/- within four weeks from the date of the said Order and in default, she was ordered to undergo simple imprisonment for 15 days. Smt. Keli Bai filed Criminal Appeal No.1705/2009 before the Hon'ble Supreme Court and since she died during the pendency of the appeal, it was dismissed as abated in terms of the Order dated 22.02.2016.
15. In so far as C.C.C. (Crl.) No.79/2002, Mr. Paras Jain, Advocate, filed an unconditional apology as follows:
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"That I regret for my act, which led to the initiation of this proceedings. I sincerely regret my act of filing applications before the Court below in Execution Proceedings and I tender unconditional apology to this Hon'ble Court. I did not intend to abuse the process of Court. I have realized my mistake and undertake not to abuse the process of Court or hinder flow of justice, in future in any manner, in any proceedings."
A Division Bench of this Court in terms of the Order dated 17.12.2002, accepted the apology of Mr. Paras Jain and dropped the Contempt proceedings initiated against him.
16. Based on the Order dated 08.01.2004 passed in CRP No.1148/2003 (referred supra), the Executing Court issued notice to the judgment debtors through a publication in the newspaper - Vijaya Karnataka on 04.02.2004. The judgment debtor No.6, who is since deceased and represented by her legal representative, namely, Sri Raja Rao, appeared while the others did not. Smt. Keli Bai again filed an application under Section 151 of the CPC., requesting the Court that the decree should not be executed in respect of the premises known as 21 'Champalal building' bearing Municipal Corporation No.83/43, 2nd Main, Palace Guttahalli, Bangalore. She claimed that the order passed in CRP No.1148/2003 was behind her back and therefore did not bind her. She also contended that what was purchased by her husband was the property that was owned by Smt.Lakshmamma and as the decree holder had given up (i) Smt. Lakshmamma - judgment debtor No.1 since deceased and represented by her legal representative, namely, Sri Markandeya, (ii) Sri Sampangi, judgment debtor No.3 and (iii) Sri Phailwan Muniswamappa, deceased judgment debtor No.5 represented by his legal representative, Sri M. Dasappa, who were arrayed as respondent Nos.1(a), 2 and 3(a) respectively, in CRP No.1148/2003, it was only against Smt. Rukmini, the deceased judgment debtor No.6 represented by his legal representative, namely, Sri Raja Rao, that the decree could be executed and not against her. The Executing Court noticing the observations recorded by this Court in CRP No.1148/2003 as stated above, allowed the application filed by Smt. Keli Bai in 22 terms of its order 02.04.2004 and held that the decree holder was entitled to obtain possession of the portion of the property which was in the occupation of judgment debtor No.6 i.e. Smt. Rukmini since deceased and represented by her legal representative, Sri Raja Rao, only and not the property in possession of the other judgment debtors. Being aggrieved by the Order dated 02.04.2004 passed by the Executing Court in Ex. Case No.132/1980, the legal representatives of the decree holder filed writ petition in W.P.No.18956/2004.
17. In the meanwhile, the Order dated 08.01.2004 passed by this Court in CRP No.1148/2003 was challenged by Smt.Rukmini since deceased and represented by her legal representative, before the Hon'ble Supreme Court in Special Leave to Appeal (Civil) No.7701/2004. The legal representative of deceased Smt. Rukmini was again represented by Mr.Paras Jain, learned counsel. The Hon'ble Supreme Court appointed a Commissioner, who submitted his report. Later, the Hon'ble Supreme Court 23 granted leave and the case was numbered as Civil Appeal No.3060/2006. The Hon'ble Supreme Court in terms of the Order dated 19.07.2006, rejected the report of the Court Commissioner and held as follows:
"The High Court in its impugned judgment, inter alia, held that the appellant could not have raised an objection purported to be in terms of the order XXI Rule 97 of the Civil Procedure Code. The High Court has failed to notice that such an objection was maintainable under Section 47 of the Civil Procedure Code. The Executing Court having considered the matter on merits, the High Court should have addressed itself not only on the question of law but also on the finding of facts arrived at by the Executing Court.
Keeping in view the facts and circumstances of this case and in particular the fact that the decree has been passed by the Lower Appellate Court in favour of the respondent as far back as in 1965 and with a view to put an end to all controversies, we are of the opinion that the judgment of the High Court as also of the Executing Court should be set aside and the Executing Court should be directed to appoint a survey knowing Advocate Commissioner to identify the property under execution at the spot.24
For the said purpose the functionaries of the Directorate of Survey shall supply all the relevant documents including the settlement maps, records of rights and all other documents to the Executing Court if and when so directed. We hope and trust that the executing court shall make all endevours to dispose of the matter as expeditiously as possible preferably from the date of communication of this order.
18. Consequently, the Hon'ble Supreme Court allowed the said Civil Appeal and set aside the Order dated 08.01.2004 passed in CRP No.1148/2003 as well the Order dated 14.11.2002 passed by the Executing Court and remitted the case to the Executing Court.
19. In view of the Order dated 19.07.2006 passed by the Hon'ble Supreme Court in Civil Appeal No.3060/2006, this Court in terms of the Order dated 30.11.2006, disposed off W.P.No.18956/2004 as infructuous.
20. The Executing Court followed the Order of the Hon'ble Supreme Court and appointed an advocate as a 25 Court Commissioner, secured the records from the Director of Survey (ADLR No.II) and issued a commissioner's warrant to the Commissioner to identify the property, which was the subject matter of the decree. The Court Commissioner filed his report on 08.01.2007. This was objected by the judgment debtor No.6 since deceased and represented by her legal representative. The Executing Court after considering the report of the Court Commissioner held that:
"The property identified by the court Commissioner and shown in Annexure I and II has entirely different boundaries when compared with that of the boundaries of the Suit Schedule Property. Therefore, I am of the considered opinion that the property identified by the court Commissioner does not tally with the suit Schedule property, as such the Commissioner's report cannot be accepted. "
Hence, the Executing Court rejected the report of the Court Commissioner in terms of the Order dated
21.02.2007. Subsequently, an application under Order XVII Rule 1 of the CPC, was filed by the legal 26 representatives of the decree holder seeking adjournment of the case for a period of two weeks. The Executing Court held that in view of the earlier Order dated 21.02.2007 passed by it rejecting the Commissioner's report, nothing remained to be executed and accordingly, closed the Execution Petition.
21. In the meanwhile, a suit in O.S.No.6353/2000 was filed by a subsequent purchaser, Smt.Lakshmamma, wife of Sri K.Papanna, against the legal representatives of the decree holder, wherein the parties filed a compromise petition in terms of which the legal representatives of the decree holder / defendants therein, namely, Sri M.Venkataswamaiah, Sri M.Ravi and Sri M. Srinivas agreed to execute the delivery warrant in Execution No.132/1980 in respect of the property in their possession. The said suit was decreed in terms of the compromise petition on 29.09.2000. Likewise, another suit in O.S. No.7616/2000 was filed by Smt.Yellamma and others being the subsequent purchasers against the legal representatives of 27 the decree holder i.e., Sri Venkatashamaiah, Sri Ravi M. and Sri Srinivas M., which too was compromised in terms of which the legal representatives of the decree holder agreed to execute the delivery warrant in respect of the property in their possession.
22. The legal representatives of the decree holder challenged the aforesaid Order dated 12.03.2007 passed by the Executing Court in Ex.No.132/1980 before this Court in CRP No.352/2007. One of the contesting respondents in the said civil revision petition, namely, Sri Suresh Babu R., son of late Sri Raja Rao and grandson of Smt. Rukmini Bai, filed an affidavit dated 24.02.2011 stating that he had accepted the Commissioner's report and withdrew the objections raised by him to the Commissioner's report and therefore prayed that the Order dated 12.03.2007 passed by the Executing Court be set aside. Consequently, this Court in terms of the Order dated 25.02.2011, allowed the revision petition and set aside the Order dated 12.03.2007 passed by the Executing Court 28 and accepted the report of the Court Commissioner in Ex.P. No.132/1980 and directed the parties to appear before the Executing Court on date specified therein.
23. Later, the Executing Court in terms of the Order dated 11.04.2011 issued a delivery warrant with police help. It is this order which was challenged by Smt.Keli Bai, wife of deceased Sri Champalal, in this revision petition. The petitioners are again represented by Mr.Paras Jain, learned counsel.
24. The contentions of the learned counsel for the petitioners are as follows:
i) That Smt. A.V.Venkatamma since deceased and represented by her legal representatives had withdrawn CRP No.1148/2003 in so far as (i) Smt.Lakshmamma since deceased and represented by her legal representative, namely, Sri Markandeya, (ii) Sri Sampangi and (iii) Sri Phailwan Muniswamappa since deceased and represented by his legal representative, namely, Sri Dasappa, and they were deleted on the ground that they were not necessary parties.29
Therefore, the decree granted in R.A.No.108/1965 cannot be executed against the legal representatives of deceased Sri. Champalal, who claimed title under Smt. Lakshmamma. In this regard, he relied upon the Judgment in Rajeswari Amma and another v.
Joseph and another [AIR 1995 SC 719].
Further he contended that the Order dated 08.01.2004 in CRP No.1148/2003 had become final and therefore was executable only against Smt.Rukmini Bai since deceased and represented by her legal representative and not against Sri Champalal since deceased and represented by his legal representatives.
ii) That Sri Champalal was not arrayed as a party in CRP No.1148/2003 and therefore, the Order dated 08.01.2004 passed therein did not bind him.
iii) That the Executing Court in Execution Case No.132/1980 by Order dated 02.04.2004 had permitted the decree holder to recover possession of the decreed property only from Sri Raja Rao, the legal representative of Smt.Rukmini Bai. He claimed that this Order was not challenged in appeal and hence became 30 final. Therefore, the decree holder since deceased represented by her legal representatives cannot proceed to recover possession of the property from the legal representatives of deceased Sri Champalal. He relied upon judgments of the Hon'ble Apex Court in: Peerless General Finance and Investment Co. Ltd., v. Poddar Projects Ltd.
and another [(2007) 2 SCC 431]; Harbans Singh and others v. Sant Hari Singh and others [(2009) 2 SCC 526]; Edukanti Kistamma (Dead) through LRs and others v. S. Venkatareddy (Dead) Through LRs.
and others [(2010) 1 SCC 756]; Premier Tyres Limited v. Kerala State Road Transport Corporation [1993 Supp (2) SCC 146]; Shankara Cooperative Housing Society Limited v. M. Prabhakar and Others [(2011) 5 SCC 607] and Ajay Mohan and others v. H.N.Rai and others [(2008) 2 SCC 507].
iv) That the legal representatives of the decree holder had compromised the suit in O.S.No.6353/2000. Thus until the extent of property in their possession is identified, the 31 decree in R.A.No.108/1965 which was in respect of property measuring 45 feet x 60 feet can be executed only against such property which met the shortfall.
v) That there is no attempt made by the Executing Court to comply the directions of the Hon'ble Supreme Court in Civil Appeal No.3060/2006 and to identify the property to which the legal representatives of the decree holder are entitled to. He submitted that the Executing Court is bound to decide the question regarding the identity of the decretal property. In this regard, he relied upon the judgment of Orissa High Court in Rama Subudhi and Others v.
Bhagirathi and others [AIR 1982 ORISSA 86] and judgment of the Hon'ble Supreme Court in Shafiqur Rehman Khan and Another v. Smt. Mohammad Jahan Begum and Others [(1982) 2 SCC 456].
25. The contentions of the learned Senior counsel representing the respondent Nos.1(b)(1) to 1(b)(3) and Sri Shaker Shetty, learned counsel for respondent Nos.1(a) and 1(c) are as follows:
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(i) That the challenge to the executability of the decree at the behest of Sri Champalal came to an end in O.S.No.2322/1983 where the executability of the decree in R.A. No.108/1965 was challenged. Thereafter, RFA No.519/1987 filed by Smt. Keli Bai, wife of deceased Sri Champalal was dismissed by this Court by order dated 21.09.1999. Despite the dismissal of RFA No.519/1987, Smt. Keli Bai, the legal representative of deceased Sri. Champalal, filed an application under Order XXI Rule 35 read with Sections 47 and 115 of the CPC in Execution No.132/1980 to declare that the decree obtained in O.S.No.544/1959 was a nullity and therefore inexecutable and hence prayed for dismissal of the execution petition.
The Executing Court rejected the application with cost of Rs.1,000/- in terms of the order dated 21.04.2001. This was questioned by the Smt. Keli Bai, the wife of deceased Sri Champalal, in CRP No.2242/2001 before this Court. This Court in terms of the Order dated 21.06.2001, dismissed the revision petition with cost of Rs.10,000/-. Smt. Keli Bai filed Review Petition No.715/2001 for review of the Order dated 21.06.2001 passed in CRP No.2242/2001 33 which was also rejected in terms of the order dated 08.02.2002.
(ii) That even after failing in many attempts, Smt.Keli Bai, the legal representative of deceased Sri Champalal filed an application under Order XXI Rule 97 read with Rule 99 and Section 151 of the CPC in Execution Case No.132/1980 contending that the decree holder in O.S.No.544/1959 was trying to execute the decree in respect of a property which was not the suit property. The said application was dismissed by the Executing Court on 31.08.2001. Smt.Keli Bai filed R.F.A. No.792/2001 which was disposed off by this Court in terms of an elaborate Judgment dated 14.03.2002.
(iii) That Smt. Keli Bai, the legal representative of deceased Sri. Champalal, was convicted by this Court in Criminal CCC No.61/2002 for filing false and frivolous claims and obstructing the course of justice.
(iv) That the learned counsel for the petitioners was also accused of obstructing the course of justice and was let off in view of an unconditional apology submitted by him before the Division 34 Bench of this Court in CCC (Criminal) No.79/2002 where he owned up that the continued proceedings was due to his advice and regretted for filing continued applications before the Executing Court.
(v) Despite the apology tendered before the Division Bench of this Court in CCC (Criminal) No.79/2002, the learned counsel for petitioners herein represented the legal representative/s of Smt.Rukmini Bai before the Hon'ble Supreme Court urging the same contentions that he had unsuccessfully raised before this Court in RFA No.519/1987 and RFA No.792/2001 and thereby kept the issue burning until Sri Suresh Babu R., grandson of Smt.Rukmini Bai conceded to the decree.
(vi) That despite the apology, the learned counsel for the petitioners has raised the very same issue in this revision petition too and has thus violated the apology submitted before this Court and hence prays that he be dealt with in accordance with law.
(vii) That the contentions urged by the learned counsel for the petitioners are already considered in detail in previous proceedings and 35 therefore the same need not be considered again.
26. I have given my anxious consideration to the arguments canvassed by the learned counsel for the petitioners as well as the learned Senior Counsel for the respondent Nos.1(b)(1) to 1(b)(3) and learned counsel for respondent Nos.1(a) and 1(c).
27. This Court is shocked that a decree granted on 18.07.1966 in R.A. No.108/1965 is not executed till date, which is patently due to the incessant attempts by the learned counsel for Sri Champalal since deceased and represented by his legal representatives. Sri Champalal was a purchaser pendente lite from Smt.Lakshmamma, who was the defendant No.1 in O.S.No.544/1959, which was filed for declaration and recovery of possession. The said Sri Champalal deposed in the suit as DW.4. He made no attempt to implead himself in the suit, if he had any inchoate interest. However, the suit was dismissed and later an appeal in R.A. No.108/1965 was filed. During the 36 pendency of this appeal, Sri.Champalal purchased the property from Smt.Lakshmamma (defendant No.1 in the suit). Even after such purchase, he made no attempt to get impleaded in the appeal. The appeal preferred in R.A. No.108/1965 was allowed in terms of the judgment and decree dated 18.07.1966 passed by the First Appellate Court and consequently, the suit in O.S.No.544/1959 was decreed. Neither Smt.Lakshmamma nor Sri Champalal filed any Second appeal challenging the decree passed by the First Appellate Court in R.A. No.108/1965. Though Sri Champalal filed a suit in O.S.No.2322/1983 challenging the identity of the property claimed by the decree holder and for perpetual injunction restraining the execution of the decree granted in O.S.No.544/1959 and R.A. No.108/1965, the same was dismissed in terms of the judgment dated 01.04.1987 and an appeal filed there against in R.F.A. No.519/87 was dismissed by this Court in terms of the judgment dated 21.09.1999. Despite this, an application was filed by Smt.Keli Bai, the wife of deceased Sri Champalal under Order XXI Rule 97 of the CPC 37 obstructing the decree was rejected in terms of the Order dated 31.08.2001 and R.F.A. No.792/2001 filed by the wife of deceased Sri Champalal was also rejected by this Court on 14.03.2002. Later an avalanche of applications were filed before the Executing Court by the wife of deceased Sri Champalal, which ended in CRP No.1148/2003. By that time, Smt. Lakshmamma had sold her property to Sri Champalal and pendente lite purchasers, namely, Smt.Lakshmamma, wife of Sri K.Papanna filed O.S.No.6353/2000 and Smt.Yellamma filed O.S.No.7616/2000 which were compromised before the City Civil Court, Bangalore and the legal representatives of the decree holder agreed not to execute the delivery warrant in Ex.No.132/1980 in respect of the suit schedule property. This Court noticed a memo dated 12.04.1982 filed in Execution case No.132/1980 where the decree holder had pointed out the names of the persons who were in occupation of the decreed premises. Amongst them, i) Sri Champalal, (ii) Sri Moahmed, (iii) Sri Chidambaram,
(iv) Sri Gururaj, (v) Sri Lakkappa, (vi) Sri Purava Gowda, 38
(vii) Sri Balasubramanyam were claiming through Smt.Lakshmamma and Sri Govindaraj (ii) Sri Siddoji Rao Khade (iii) Sri Anand were claiming through Sri Phailwan Muniswamappa who was occupying two portions and (i) Sri Rangaiah (ii) Sri Venugopal (iii) Sri Nair (iv) Sri V.Rama Rao were claiming through Smt.Rukmini Bai, who was occupying two portions. Therefore, a memo was filed to delete (i) Smt.Lakshmamma since deceased represented by legal representative, Sri Markandeya, (ii) Sri Sampangi and (iii) Sri Phailwan Muniswamappa since deceased and represented by his legal representative, Sri Dasappa, from the array of parties in CRP No.1148/2003, which was allowed by this Court in terms of the Order dated 13.01.2003. In the meanwhile contempt proceedings were taken out against the wife of deceased Sri Champalal and his Advocate, Mr.Paras Jain, for obstructing the course of justice. Smt. Keli Bai, the wife of deceased Sri Champalal was punished while Mr. Paras Jain, learned consel, submitted an unconditional apology before the Division Bench of this Court in CCC (Criminal) No.79/2002 owning 39 up his mistake in advising the party to file repeated applications in the Execution Petition. Notwithstanding the above apology, Mr. Paras Jain represented legal representative of deceased Smt.Rukmini Bai before the Hon'ble Supreme Court of India in Special Leave to Appeal (Civil) No.7701/2004, where he challenged the Order dated 08.01.2004 passed by this Court in CRP No.1148/2003, on precisely the same grounds that he had unsuccessfully urged in O.S.No.2322/1983, RFA No.519/1987 and RFA No.792/2001. The Hon'ble Supreme Court in Civil Appeal No.3060/2006 in terms of its order dated 19.07.2006, set aside the Order dated 08.01.2004 passed in CRP No.1148/2003 and directed the Executing Court to decide the question that arose before it. Sri Suresh Babu R., the son of Sri Raja Rao and grandson of Smt.Rukmini Bai, conceded to the claim of the legal representatives of the decree holder and withdrew the objections raised against the executability of the decree. Thus, the differences between the legal representatives of the decree holder and judgment debtors were completely 40 addressed in as much as Smt.Lakshmamma and Sri Phailwan Muniswamappa did not challenge the decree in R.A.No.108/1965 while Sri Sampangi did not contest the suit in O.S.No.544/1959 and Sri Muniveerappa was a formal party and the suit against Sri Seethappa was given up in R.A. No.108/1965. The legal representative of deceased Smt. Rukmini Bai, namely, Sri Suresh Babu R., accepted the title of the legal representatives of the decree holder and conceded to their claim, thus drawing a curtain over a protracted litigation. Following this, the Executing Court issued a delivery warrant to deliver possession of the decreed property with police help. Smt. Keli Bai, the wife of deceased Sri Champalal again attempted to resurrect her claim by challenging the order issuing delivery warrant by filing this revision petition. The grounds urged in support of the petition were either considered by the Courts in the earlier rounds of litigation or are such that they do not deserve any consideration. Nonetheless, the same are considered to avoid being categorized as a non- speaking order.
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i) The first contention that CRP No.1148/2003 was withdrawn against (i) Smt.Lakshmamma since deceased and represented by legal representative, namely, Sri Markandeya, (ii) Sri Sampangi, and
(iii) Sri Phailwan Muniswamappa by his legal representative, Sri Dasappa, on the ground that they were not necessary parties and therefore, the decree granted in R.A.No.108/1965 cannot be executed against Smt.Lakshmamma and Sri Champalal, is not maintainable as the claim of Sri Champalal was rejected in more than one proceeding and the application filed by Smt. Keli Bai, the wife of deceased Sri Champalal under Order XXI Rule 97 of the CPC., in Execution Case No.132/1980 was rejected by the Executing Court in terms of the Order dated 31.08.2001 and therefore, she was bound by the decree. Be that as it may, the Order in CRP.No.1148/2003 was set aside by the Hon'ble Supreme Court in Civil Appeal No.3060/2006 at the behest of Smt. Rukmini since deceased and represented by her legal representative/s. Hence, it cannot be contended that the decree dated 18.07.1966 passed in R.A.No.108/1965 was inexecutable against Sri Champalal. Hence this contention is rejected outright.
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ii) The other contention that the Executing Court in Execution No.132/1980 by Order dated 02.04.2004, had permitted the decree holder to recover possession of the decreed property which was in occupation of Sri Raja Rao, the legal representative of deceased Smt.Rukmini Bai only, which remained unchallenged and hence the same became final. This Order was undoubtedly challenged in W.P.No.18956/2004. However, in view of the Order of the Hon'ble Supreme Court in Civil Appeal No.3060/2006, the Writ Petition was disposed of by this Court as it did not survive for consideration in terms of the Order dated 30.11.2006 and the Executing Court was to decide the questions raised by the legal representative of deceased Smt.Rukmini Bai. Hence this contention too fails.
iii) Sri Champalal since deceased and represented by his wife, Smt.Keli Bai, claimed that the decree holders had compromised the suit in O.S.No.6353/2000 filed by a subsequent purchaser, namely, Smt.Lakshmamma, wife of Sri K.Papanna and O.S.No.7616/2000 filed by Smt.Yellamma and others against the legal representatives of the decree holder, by which the decree holders agreed not to execute the delivery 43 warrant in Execution No.132/1980 in respect of the suit schedule property against them. Hence the contention, that until the extent of property settled was identified the decree which was in respect of property measuring 45 feet x 60 feet can be executed only against such property to meet the shortfall, does not merit consideration since admittedly, a building stood on the decreed property which was occupied by many persons. It may be that the legal representatives of the decree holder had settled the dispute against some of the occupants but that does not mean that the decree cannot be executed against Sri Champalal and his legal representatives as his property was held to be lying within the limits of the decreed property.
iv) The last contention urged is that the Executing Court did not comply the directions of the Hon'ble Supreme Court in Civil Appeal No.3060/2006 to identify the property to which the legal representatives of the deceased decree holder are entitled to, it is relevant to note that this contention was only available to the legal representative/s of deceased Smt.Rukmini Bai who filed Civil Appeal No.3060/2006 and not to the legal representatives of deceased Sri.Champalal. Even otherwise, Sri Suresh Babu R., the grandson of 44 deceased Smt.Rukmini Bai had settled the dispute with the legal representatives of the decree holder and withdrew his objection regarding the executability of the decree. Hence this contention is liable to be rejected.
28. Thus, the Revision Petition is liable to be rejected on all counts and is accordingly rejected.
29. The role of the learned counsel for the petitioners, Mr. Paras Jain, in protracting the litigation is writ large on the record and he has pushed the case this far by setting up legal representatives of deceased Smt.Rukmini Bai to challenge the executability of the decree passed in R.A. No.108/1965 on the grounds that he had unsucessfully urged while he represented Sri Champalal. This is gross violation of his apology submitted before the Division Bench of this Court in CCC (Criminal) No.79/2002. The apology tendered before this Court is clearly not honest but was designed to escape from being hauled up for contempt. Mr. Paras Jain, by his egregious acts has ensured that the fruits of the decree in 45 R.A.No.108/1965 is not reaped from the year 1966 till date and has deprived the rent that the property would have earned over the years. Hence, he deserves to be penalised with exemplary costs payable to the legal heirs of the decree holder. This apart, notwithstanding his apology tendered before the Division Bench of this Court in CCC (Criminal) No.79/2002, he has continued his contumacious acts by representing the legal representative/s of deceased Smt.Rukmini Bai before the Hon'ble Supreme Court in Civil Appeal No.3060/2006, that too after tendering an apology before the Division Bench of this Court in CCC (Criminal) No.79/2002 and despite stating that he had realized his mistake and despite undertaking that he would henceforth not abuse the process of Court or hinder the flow of justice in future in any manner in any proceedings. The conduct of the learned counsel for petitioners therefore not only amounts to misconduct under the Advocates Act, 1961, but also is liable to be prosecuted for contempt of this Court for violating the undertaking given before a Division Bench of this Court in CCC (Criminal) No.79/2002 and the 46 cognizance of such contempt is taken by this Court in exercise of the power vested in it under Article 215 of the Constitution of India. Hence the following Order:
ORDER
(i) The Revision Petition is dismissed.
(ii) The learned counsel for the petitioners is directed to pay compensatory and exemplary cost of Rs.5,00,000/- (Rupees Five Lakhs only) to the legal representatives of the decree holder (respondents herein) within four weeks from the date of receipt of a certified copy of this Order.
(iii) Additionally, the Registrar General is directed to file appropriate petition for committing criminal contempt against the learned counsel, Mr.Paras Jain, and place a copy of this Order before the appropriate Bench having roster.
(iv) In addition, the Registry is directed to forward a copy of this Order to the Karnataka State Bar Council, Bengaluru, to initiate appropriate 47 disciplinary proceedings against Mr. Paras Jain, learned counsel, for committing gross professional misconduct.
Sd/-
JUDGE sma