Karnataka High Court
Smt Divyamba vs Smt B N Sudha on 15 March, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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RFA No. 1496 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO. 1496 OF 2022 (EJE)
BETWEEN:
SMT DIVYAMBA
W/O S KANTHARAJU
D/O LATE CHANDRASHEKHAR
AGED ABOUT 42 YEARS
R/AT NO 482, 2ND FLOOR, 8TH MAIN
2ND CROSS VIJAYANAGAR
BANGALORE - 560 040.
...APPELLANT
(BY SRI. LEELADHAR H P.,ADVOCATE)
AND:
1. SMT B N SUDHA
W/O LATE V N SURESH
AGED ABOUT 64 YEARS
R/AT NO 909/A /53, 6TH MAIN,
VIJAYANAGAR, BANGALORE- 560 040.
Digitally
signed by
CHANDANA 2. SMT B N VEENA
BM W/O H NAGARAJ AGED ABOUT 62 YEARS
Location: R/AT NO 834, 5TH MAIN
High Court M C LAYOUT, VIJAYANAGAR
of Karnataka BANGALORE- 560 040.
3. SMT SHASHI PANDITA
W/O NAVEEN PANDITA
AGED ABOUT 54 YEARS
R/AT NO 101 A BLOCK
CANOPY CALYX APARTMENTS
COFFEE BOARD LAYOUT
BANGALORE - 560 024.
4. SRI ANNEGOWDA @ ANIL GOWDA
S/O MALLE GOWDA
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RFA No. 1496 of 2022
AGED ABOUT 43 YEARS
R/AT NO 482, 2ND FLOOR,
8TH MAIN, 2ND CROSS
VIJAYANAGAR, BANGALORE - 560 040.
...RESPONDENTS
(BY SRI. R.B. SADASIVAPPA, ADVOCATE FOR R-1 TO R-3)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF
CPC., AGAINST THE ORDER DATED 03.08.2022 PASSED ON IA NO.1 IN
EX. No.278/2022 ON THE FILE OF THE XIV ADDL. SMALL CAUSES
JUDGE AND ACMM, BENGALURU, DISMISSING THE IA NO.1 FILED
UNDER ODER 21 RULE 97, 99 AND 101 OF CPC., THE SUIT FOR
EJECTMENT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the impugned order dated 03.08.2022 passed in Ex.No.278/2022 by the XIV Addl.Small Causes Judge, Bangalore, whereby the application I.A.No.1 filed by the appellant - obstructor under Order 21 Rules 97, 99 and 101 of CPC seeking adjudication of her alleged right, title, interest and possession over the suit schedule premises was rejected by the trial court.
2. Heard learned counsel for the appellant and learned counsel for the respondents and perused the material on record.
-3- RFA No. 1496 of 20223. The material on record discloses that respondents 1 to 3 instituted the suit in S.C.No.1552/2019 against the 4th respondent for ejectment and other reliefs in relation to the suit schedule immovable property. The said suit having been contested by the 4th respondent, came to be decreed in favour of respondents 1 to 3, vide judgment and order dated 08.12.2021. Aggrieved by the said judgment and order, the defendants in the said suit did not challenge the same before this Court. On the other hand, the appellant herein claiming to be the third party obstructor, filed C.R.P.No.88/2022 before this Court, which was disposed of vide order dated 17.03.2022 reserving liberty in favour of the appellant herein to agitated her claim in the present execution proceedings as an obstructor. Pursuant to the said liberty granted by this Court in C.R.P.No.88/2022, the appellant herein filed the instant application I.A.No.1 inter alia contending that she was the tenant under one P.N.Mohan, brother of respondents 1 and 3 and had paid a sum of Rs.1 lakh to him and balance of Rs.2,75,000/- to Mr.B.M.Pradhan son of P.N.Mohan, pursuant to which, the appellant was in possession and enjoyment of the suit schedule premises.
-4- RFA No. 1496 of 20224. The respondents 1 to 3 - Decree holders opposed the said application not only denying that the appellant was in possession and enjoyment of the suit schedule premises but also contended that no right flows from the unregistered alleged Mortgage Deed dated 16.06.2018 and subsequent unregistered Mortgage Deed dated 27.05.2021 and the same said to have been executed during the pendency of S.C.No.1552/2019 did not entitle the appellant to claim any right over the suit schedule premises.
Respondents 1 to 3 - Decree holders also submitted that the appellant herein was a tenant in respect of one more portion in the II floor, in relation to which, the respondents 1 to 3 instituted S.C.No.1553/2019 which came to be decreed in their favour vide judgment and order dated 08.12.2021 and confirmed by this Court in C.R.P.No.87/2022 vide order dated 24.02.2023. It was therefore submitted by the Decree holders that the appellant did not have any right to claim to be the obstructor in relation to the suit schedule premises and consequently, the trial court was fully justified in coming to the conclusion that the application I.A.No.1 filed by the appellant was not maintainable and liable to be dismissed.
-5- RFA No. 1496 of 20225. After hearing the parties, the trial court proceeded to pass the impugned order rejecting I.A.No.1 filed by the appellant in Ex.No.278/2022 by holding as under:-
ORDER on IA.No.I. The third party applicant by name Divyamba has filed application under order 21 Rule 97, 99 and 101 of CPC prayed to adjudicate the right, title and interest of the abstractor over the schedule premises.
2. The third party applicant has filed affidavit accompanying with application contending that earlier she was a tenant under P.N.P.N.Mohan S/o.Narasimha Murthy and occupied the portion of Building No.482, 2nd Cross, 8th Main Vijayanagar, Bengaluru in second floor consisting one hall, one kitchen, one small bed room with RCC roof under the agreement of mortgage dated 16-06-2016. The mortgaged consideration was fixed of Rs.3,75,000/-.
She has paid advanced consideration of Rs.1,00,000/- and remaining amount of Rs.2,75,000/- was paid on 23-06-2016 to Pradhan.B.M..B.M. S/o.
P.N.P.N.Mohan and his mother Smt.Latha.C.L., the same was endorsed on the mortgaged agreement dated 16-06-2018. Further submits that, another portion of building adjacent to the earlier property wherein the IIIrd party applicant is in actual physical possession and enjoyment consisting with one hall, two bed room, one pooja room, Kitchen and toilet -6- RFA No. 1496 of 2022 room with RCC sheet. The ejectment suit in S.C.No.1552/2019 was filed against the one Annegowda S/o.Mallegowda who is Jdr as he was paying rent of Rs.10,400/-p.m. The Dhr and Jdr colluding filed the false suit and obtained the decree in the said suit. The third party applicant submits that, one Annegowda residing in B schedule property and the third party applicant is the neighbor of 'B' schedule property. The P.N.P.N.Mohan was absolute owner of said premises and leased out said premises to the Jdr. The said Jdr intended to vacate the 'B' schedule property and P.N.P.N.Mohan was exercising the right of ownership over the schedule property and in order to repay the mortgage amount of Rs.3,75,000/-, the son of P.N.P.N.Mohan i.e., Pradhan.B.M. had executed the agreement of Mortgaged on 27-05-2021 incorporating the previous mortgage with Jdr and the third party applicant can paid Rs.4,00,000/- in addition to the Rs.3,75,000/-, total Rs.7,75,000/-. Therefore the Pradhan.B.M. has executed the mortgage deed of Rs.7,75,000/- for a period of 3 years. The Dhr has knowledge about the said fact without impleading her obtained the decree and she is bona fide mortgagor for the value. She submits that she entered into mortgage agreement with Pradhan.B.M. as she believed the Pradhan.B.M. is owner of suit property. The third party applicant submits that she is in actual physical possession and enjoyment of the schedule property and my right in the suit property and entitle for redemption of mortgage and foreclosure of -7- RFA No. 1496 of 2022 mortgage. The decree against the Annegowda is obtained by playing fraud upon the court and the decree is not executable. The Pradhan.B.M. has P.A. holder of the Annegowda and decree obtained by the Dhr against Annegowda is fraudulent decree colluding with each other. Thereby the objector contended that, her right interest in the schedule premises is to be adjudicated and she is entitle mortgage amount paid to the P.N.Mohan and Pradhan.B.M. Prayed to allow the application and adjudicate her right, interest in the suit property.
3. On the other hand, the Dhr has filed objection contending that, objector has nothing to do with petition schedule premises. She never nor is in occupation of schedule premises with respect to the decree obtained on 08-12-2021 in S.C.No.1552/2019 against the Annegowda. The Annegowda being a Jdr failed to comply the decree. Therefore the present execution petition is filed. The obstructor filed CRP No.88/2022 before the Hon'ble High Court of Karnataka and the same was dismissed. It is not a case of the obstructor as she was in occupation of two residential premises. There is a decree against the obstructor in S.C.No.1553/2019 dated 08-12-2021. Under these circumstances the petitioner cannot claim as she is in occupation of premises wherein Jdr was tenant i.e., Annegowda. Therefore the application is false, frivolous and vexatious. The Annegowda was represented in the suit and he was admitted that the -8- RFA No. 1496 of 2022 mother i.e., Smt.Lakshamamma and elder brother of plaintiff by name P.N.Mohan has leased out the schedule B premises in question to the defendant on monthly rent of Rs.10,400/- vide lease deed dated 15- 05-2014. The one Pradhan.B.M. power of attorney holder of Sri.Annegowda in the S.C.No.1553/2019. Therefore the obstructor cannot claim as she is in possession of suit property. The application is filed by the obstructor only to delay the execution. There is a suit in S.C.No.1319/2019 against the Pradhan.B.M. for possession of property. Therefore the obstructor cannot set up third person like Pradhan.B.M. as the owner of the suit property against the true owner. Pradhan.B.M. has admitted in said suit he required 6 months to vacate the suit schedule premises where Pradhan.B.M. was residing. The Dhr submits that, in the cross-examination of obstructor in S.C.No.1553/2019 has admitted that, after service of notice I did not make any effort to verify the ownership of the suit property. A Pradhan.B.M. who present before the court has given information to prepare my written statement. The affidavit filed by me on 02-08- 2021 and the said affidavit is prepared based on information given by the said Pradhan.B.M.. With other allegations with respect to the O.S.No.1766/2017. The Dhr prayed to dismiss the application with cost.
4. Heard the argument from the both side. Perused the records.
-9- RFA No. 1496 of 20225. The following points that would arise for my consideration.
1. Whether the third party obstructor proves that she is in actual and physical possession of schedule premises?
2. Whether the third party obstructor further proves that she has independent right and interest in the suit schedule premises?
3. What order?
6. My finding to the above points as follows:
POINT No.1: In the Negative POINT No.2: In the Negative POINT No.3: As per final order for the following:
REASONS
7. POINT No.1. & 2 : These points are interlinked with each other. Thereby the both points are taken together for common discussion.
8. The third party obstructor filed application contending that she is in possession of suit premises as lessee and Pradhan.B.M. has executed the lease deed addition to the lease deed executed by his father i.e., P.N.Mohan dated 16-06-2016 and the third party obstructor paid amount of Rs.3,75,000/- as per mortgage agreement dated 16-06-2016 and subsequent as per mortgage agreement dated 25-07-
2021 executed by Pradhan.B.M. i.e., S/o.P.N.P.N.Mohan, the obstructor paid amount of Rs.4,00,000/-, totally for a sum of Rs.7,75,000/- and
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RFA No. 1496 of 2022she is in possession of the schedule premises as stated above. The obstructor alleged that without impleading her as a party to the suit in S.C.No.1552/2019 and obtained fraudulent decree colluding with each other against the Annegowda. It is the case of the obstructor that third party applicant is the neighbor of 'B' schedule property. The P.N.Mohan was absolute owner of said premises and leased out said premises to the Jdr. The said Jdr intended to vacate the 'B' schedule property and P.N.Mohan was exercising the right of ownership over the schedule property and in order to repay the mortgage amount of Rs.3,75,000/-, the son of P.N.Mohan i.e., Pradhan.B.M. had executed the agreement of Mortgaged on 27-05-2021 incorporating the previous mortgage with Jdr and the third party applicant can paid Rs.4,00,000/- in addition to the Rs.3,75,000/-, total Rs.7,75,000/-. Therefore the Pradhan.B.M. has executed the mortgage deed of Rs.7,75,000/- for a period of 3 years.
9. The Dhr has denied that the obstructor is in possession of the suit schedule property. The third party obstructor has produced the documents like evidence copy of PW-1 in S.C.No.1552/2019, notice, postal acknowledgement, postal receipt, gift deed in the name of Dhr, Khata extract, Khata certificate, tax paid receipts, all these documents are certified copies and standing in the name of Dhr and the gift deed is executed in the year 2016 itself and the notice was
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RFA No. 1496 of 2022issued to the Annegowda with respect to the present schedule premises alleged to be claimed as obstructor is in possession based on mortgage deed dated 25-07-2021. The obstructor has produced the documents like plaint copy of O.S.No.1766/2017 before the City Civil Judge, Bengaluru in between Dhr and their family members and the written statement of the said suit, evidence of DW-1 of the said suit and Power attorney.
10. It is pertinent to note that, the obstructor claims as she is in possession of suit schedule premises based on lease agreement dated 25-07- 2021 alleged to be executed by Pradhan.B.M. for a period of 3 years. The said Lease deed is unregistred document. The obstructor has paid deficit stamp duty on the lease agreement dated 25-07-2021. As per lease agreement the lease period is 3 years. The obstructor has contended in her application she is the mortgagee and came in to possession of the suit property under the agreement dated 25-07-2021 paying amount total of Rs.7,75,000/-. Therefore she has entitled to redeem the mortgage and right to foreclosure the mortgage. When the obstructor is claiming to be a mortgagee in the suit premises for a period of 3 years under the agreement dated 25-07- 2021, under these circumstance as per Sec.58 and 59 of T.P. Act, the mortgage deed must be registered and in case of it is treated as lease also it must be registered if the lease for a period of more than year.
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RFA No. 1496 of 2022On perusal of the lease agreement dated 25-07-2021 it shows that, it is an unregistered document, though the obstructor paid deficit stamp duty it cannot be looked in to unless registered the document.
The obstructor has produced the documents i.e., Lease agreement and other documents with respect to the legal proceedings between the Dhr and their family members and S.C.No.1552/2019.
11. It is pertinent to note that, the obstructor was the defendant in S.C.No.1553/2019 with respect to the schedule premises in the said suit which is the premises in property No.482, which was situated besides to the premises alleged to be claimed by the obstructor she is in possession of the suit premises as on the date of application by way of mortgage deed dated 25-07-2021. Admittedly the Dhr is owner of the property No.482, wherein the obstructor is claiming to be in possession of part of portion. The suit S.C.No.1553/2019 was filed by the present Dhr as a owner and produced the gift deed in the said suit as a owner and said suit came to be decreed on 08-12- 2021 against the present obstructor. In the said suit the obstructor has given evidence and the portion of the evidence is reproduced in the objection statement by the Dhr. The portion evidence is not disputed by the obstructor during the course of hearing on the application. Therefore it is relevant to reproduce the said portion of the evidence as mentioned by the Dhr in the objection and the same is read as follows:
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"after service of notice I did not make any effort to verify the ownership of the suit property. A Pradhan.B.M. who present before the court has given information to prepare my written statement. The affidavit filed by me on 02-08-2021 and the said affidavit is prepared based on information given by the said Pradhan.B.M.."
The obstructor clearly stated in her evidence that, Pradhan.B.M. has prepared her written statement and given information to prepare the affidavit on 02-08- 2021 in S.C. No.1553/2019. Therefore the obstructor petitioner and said Pradhan.B.M. who is the son of P.N.Mohan and the said Pradhan.B.M. also present in the open court during the evidence of obstructor petitioner in S.C.No.1553/2019. The said Pradhan.B.M. is GPA holder of Annegowda and gave evidence in S.C.No.1552/2019 filed by the Dhr against the Annegowda. In spite of it the obstructor stated in application that the Dhr and Annegowda and also Pradhan.B.M. have colluded with each other and obtained decree by playing fraud upon the court. Therefore the contention of obstructor is not at all acceptable. Further the obstructor contended that she is in possession of the suit property as on the date of application and decreed passed in S.C.No.1553/2019 based on lease agreement dated 25-07-2021. The obstructor full known about the proceedings of S.C.No.1552/2019 being a defendant in the said suit and S.C.No.1553/2019 being a Pradhan.B.M. was
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RFA No. 1496 of 2022GPA of the defendant Annegowda in the said suit and as Annegowda had prepared the written statement of obstructor. The obstructor claims that the said Pradhan.B.M. executed lease agreement dated 25-07- 2021 for sum of Rs.7,75,000/- for a period of 3 years. As on the date of said alleged lease agreement the Pradhan.B.M. was not a owner of the property and the said fact is well within the knowledge of the obstructor petitioner, because at that time, the eviction proceedings were pending against the Pradhan.B.M., Annegowda and present obstructor petitioner in different suits. The obstructor petitioner has disputed the title of the Dhr in S.C.No.1553/2019 and deposed the same before the court and also contended that, the P.N.Mohan was owner of the suit property. The Dhr has produced the gift deed with respect to the schedule premises executed by Jalakshmamma in favour of Dhr in S.C.No.1553/2019 much prior to lease agreement dated 25-07-2021. In spite of knowing it she entered into lease agreement with Pradhan.B.M. and the said lease agreement for a period of 3 years, but not registered. Therefore it cannot be looked into for want of registration. Such being a facts and circumstance the detail enquiry is not necessary to dispose the application. Therefore I would like to refer the decision reported in (1998) 3 SCC 723 between Silverline Forum Pvt. Ltd vs Rajiv Trust And Another, Wherein the Hon'ble Apex Court held that,
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RFA No. 1496 of 2022"It is necessary that the questions raised by the resistor or the obstructor must legally arise between him and the decree-holder. in the adjudication process envisaged in order 21 Rule 97(2) of the Code, execution court can decide whether the question raised by a resistor or obstructor legally arises between the parties. An answer to the said question also would be the result of the adjudication contemplated in the sub-section.
In the above context we may refer to Order 21 Rule 35(1) which reads thus:
"Where a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or too such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property."
It is clear that executing court can decide whether the resistor or obstructor is a person bound by the decree and he refused to vacate the property. That question also squarely falls within the adjudicatory process contemplated in Order 21 Rule 97(2) of the Code. The adjudication mentioned therein need not necessarily involve a detailed enquiry or collection of evidence. Court can make the adjudication on admitted facts or even on the averments made by the resistor. Of course the Court can direct the parties to
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RFA No. 1496 of 2022adduce evidence for such determination. If the Court deems it necessary.
In Bhanwar Lal V/s. Satyanaraian and another [(1995) (1) SCC 6], a three - judge Bench has stated as under: In Bhanwar Lal V/s. Satyanaraian and another "A reading of Order 21, Rule 97 CPC clearly envisages that "any person" even including the judgment-debtor irrespective whether he claims derivative title from the judgment- debtor or set up his own right, title or interest de hors the judgment debtor and he resists execution of a decree, then the court in addition to the power under Rule 35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The degree- holder gets a right under Rule 97 to make an application against third parties to have his obstruction removed and an enquiry thereon could be done."
In this case the detailed inquiry is not necessary. The obstructor has not produced any documents except lease deed to show she is in physical possession of schedule premises, but the said lease deed is got executed between the obstructor and Pradhan.B.M. knowing the fact that the Pradhan.B.M. was not an owner of the property. Because the Dhr have produced the gift in their favour in S.C.No.1553/2019, wherein the obstructor was
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RFA No. 1496 of 2022defendant. Therefore under these circumstance there is no proper claim to show she is in possession of suit premises except lease agreement alleged to be executed by other than owner of property and knowing the said fact obstructor entered in to an agreement, wherein the another tenant was occupied. Therefore in view of the above principles and circumstances of fact, this court opinion that, the obstructor and the Pradhan.B.M. have colluded with each other and created the lease agreement to depet the right of the Dhr. Hence I am of the opinion that the obstructor is not in physical possession of schedule premises and failed to show she ha independent right or interest in the property. Therefore the application is liable to be dismissed. Hence, I answer the point No.1 nd 2 in the Negative.
12. Point No.3: In view of my finding and reasons on point No.1 and 2, I proceed to pass the following:-
ORDER The IA.No.I filed by the third party applicant by name Divyamba under order 21 Rule 97, 99 and 101 of CPC is hereby dismissed.
No order as to cost."
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6. As can be seen from the impugned order passed by the trial court, the pleadings, contentions and evidence of the parties have been properly and correctly considered and appreciated by the trial court, bearing in mind the judgment of the of the Apex Court in the case of Silverline Forum Pvt. Ltd., vs. Rajiv Trust and Another - 1998(3) SCC 723. The trial court has come to the correct conclusion that in the absence of any material produced / placed by the appellant - obstructor to establish that she had independent right, title, interest and possession over the suit schedule premises and since the alleged Mortgage Deeds dated 16.06.2018 and 27.05.2021 were unregistered documents, referring the matter for trial by way of detailed enquiry was not warranted in the facts and circumstances of the instant case.
7. Upon re-appreciation, reconsideration and re-evaluation of the entire material on record, I am of the considered opinion that the impugned order passed by the trial court rejecting I.A.No.1 filed by the appellant does not suffer from any illegality or infirmity nor can the same be said to be capricious or perverse warranting interference by this Court in the present appeal. In this context, it is relevant to state that as rightly held by the trial court, the only
- 19 -RFA No. 1496 of 2022
documents produced by the appellant before the trial court to claim possession were the unregistered Mortgage Deeds and consequently, in the absence of any other material to establish the independent right, title, interest and possession of the appellant over the suit schedule premises, I am of the view that the trial court was fully justified in rejecting the application filed by the appellant claims to be the obstructor in respect of the suit schedule premises.
8. It is also significant to note that even according to the appellant, she claimed to have been inducted into the possession of the suit schedule premises by P.N.Mohan - brother of respondents 1 to 3 and not by respondents 1 to 3 themselves and the amount of Rs.7,75,000/- was said to have been paid by her to P.N.Mohan and his Son Mr.Pradhan and since, there is no allegation of any privity of contract between the appellant, respondents 1 to 3 therein or the 4th respondent, coupled with the fact that it is neither pleaded nor established that the said P.N.Mohan or his son Mr.Pradhan had any right over the suit schedule premises, the claim of the appellant that she has independent right over the suit schedule premises was correctly
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RFA No. 1496 of 2022negatived by the trial court. Under these circumstances, I do not find any merit in the appeal and the same is hereby dismissed.
Liberty is however reserved in favour of the appellant to take recourse to such remedies as available in law including proceeding against Mr.B.M.Pradhan and his family members ventilating her grievances including the claim of the said amount of Rs.7,75,000/-
said to have been paid by her to Mr.B.M.Pradhan and his father P.N.Mohan and if remedies are availed of by the appellant, the said court / Forum / Authority shall consider the claim of the appellant and pass appropriate orders in accordance with law without being influenced by the findings and observations recorded in the impugned order or this order.
Sd/-
JUDGE Srl.