Karnataka High Court
M Abdul Kareem vs Mr. B R Rangaswamy on 15 November, 2022
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RFA No. 1177 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR FIRST APPEAL NO. 1177 OF 2021 (POS)
BETWEEN:
M ABDUL KAREEM,
SON OF LATE S. M. MUNEER,
AGED ABOUT 31 YEARS,
R/A NO.86, OLD NO 14,
RICHMOND ROAD, BENGALURU - 560 025.
...APPELLANT
[BY SRI. HUSSAIN MUEEN FAROOQ, ADVOCATE FOR
SRI. MOH. KAMRAN KHAN, ADVOCATE (PH)]
AND:
MR. B.R. RANGASWAMY
SINCE DEAD BY HIS LR's
1. SMT R VIJAYALAKSHMI,
WIFE OF LATE B R RANGASWAMY,
AGED ABOUT 68 YEARS,
2. MRS B.R. SUPRIYA,
D/O LATE B.R. RANGASWAMY,
Digitally signed by AGED ABOUT 49 YEARS,
GURURAJ D
Location: High 3. MR B.R.DILIP KUMAR,
Court Of Karnataka S/O OF LATE B.R. RANGASWAMY,
AGED ABOUT 47 YEARS,
4. MRS SHUBHA ROMESHPATEL,
D/O LATE B.R. RANGASWAMY,
W/O MR. ROMESH VIJAY PATEL,
AGED ABOUT 45 YEARS,
R/A NO.191, 3RD CROSS,
18TH MAIN, 6TH BLOCK,
KORAMANGALA, BENGALURU-560 095.
5. Ms. B.R. KAVITHA,
D/O LATE B.R. RANGASWAMY
AGED ABOUT 42 YEARS
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RFA No. 1177 of 2021
6. MR B.R. KASTURI RANGAIAH
W/O OF LATE B.R. RANGASWAMY
AGED ABOUT 41 YEARS
RESPONDENTS NO.1 TO 3, 5 & 6
R/A NO.101 RAILWAY PARALLEL ROAD,
KUMARA PARK WEST,
BENGALURU 560 020.
MR SYED YOUNUS
SINCE DEAD BY HIS LRs
7. MRS. BASHEERA JAN,
AGED ABOUT 73 YEARS,
W/O LATE D.SYED YOUNUS,
8. MS. SABEENA BANU,
AGED ABOUT 52 YEARS,
D/O LATE D.SYED YOUNUS,
9. MS. HUMERA BANU,
AGED ABOUT 48 YEARS,
D/O LATE D.SYED YOUNUS,
10. MS. AFROZE BANU,
AGED ABOUT 55 YEARS,
D/O LATE D.SYED YOUNUS,
11. MR. SYED SUHAIL,
AGED ABOUT 53 YEARS,
S/O LATE D.SYED YOUNUS,
RESPONDENTS NO.7 TO 11 ARE
RESIDING AT 18/1, 5TH CROSS,
JAIBHARATH NAGAR,BANGALORE - 560 033.
...RESPONDENTS
[BY SRI. ARUN B M., ADVOCATE FOR R1 TO R6 (PH);
NOTICE SERVED FOR R7 TO R11 AND UNREPRESENTED ]
THIS RFA FILED UNDER SEC.96 R/W ORDER 41 RULES 1 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED 04.10.2021
PASSED IN EX.P.NO.15061/2006 ON THE FILE OF THE LXXII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
DISMISSING THE APPLICATION FILED UNDER ORDER 21 RULES 58,
97, 101 AND 103 R/W SEC.151 OF CPC., PRAYING TO CONSIDER
THE RESISTANCE, BEFORE EXECUTION THE DECREE.
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RFA No. 1177 of 2021
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging impugned order dated 04.10.2021 passed by LXXII Addl. City Civil & Sessions Judge, Bangalore CCH 73 Mayo Hall Unit, rejecting application filed under Order 21 Rules 58, 97, 101 and 103 r/w Section 151 of CPC by Sri. M.Abdul Kareem - objector (third party) this appeal is filed.
2. Appellant herein was applicant; respondents no.1 to 6 were decree holders; while respondents no.7 to 11 were judgment debtors. For sake of convenience they shall hereinafter be referred to as such.
3. Though matter was listed for consideration of I.A. no.1/2022 for vacating stay filed by respondent; I.A.no.4/2022 for production of documents under Order VII rule 14 (3) of CPC; I.A.no.5/2022 for adjournment under Order XVII rule 1 of CPC and I.A.no.6/2022 under Section 151 of CPC for direction, it was taken up for final disposal with consent of learned counsel along with applications.
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4. Insofar as I.A.no.5 of 2022, in view of order dated 21.09.2022 granting adjournment, it has been rendered infructuous.
5. Insofar as I.A.no.4/2022, it is seen that documents no.1 to 3 produced along with application are copy of letter dated 25.07.2022 addressed to Inspector General of Stamps and Revenue Commissioner and letter dated 21.07.2022 addressed to Member Secretary, Central Evaluation Committee, office of IGR and RC, copy of complaint dated 20.11.2021 addressed to Hon'ble the Chief Justice, High Court of Karnataka against Presiding Officer, who passed impugned order.
6. Same have come into existence after passing of impugned order dt.04.10.2021 and therefore, would not be relevant or necessary and they would also not have any bearing on subject matter of this appeal.
7. Insofar as documents no.4 and 5 i.e., letter dated 15.10.1982 and agreement of sale dated 23.08.1978, it is seen that they were marked as Ex.D.22 and Ex.P.1 respectively and duly referred to by trial Court. Therefore, I.A.no.5/2022 in any case deserves to be rejected by considering said application -5- RFA No. 1177 of 2021 either under Order XLI rule 27 or under Order VII rule 14 (3) of CPC.
8. Insofar as I.A.no.6/2022, it is seen that, applicant/appellant is seeking for direction for conducting enquiry into various irregularities/fraudulent acts committed by respondents, through former High Court Judge.
9. Instant appeal arises out of order passed on third party objector's application. Procedure for such determination is akin to that of suit and parties herein have availed full opportunity to lead evidence and cross-examine witnesses. After conclusion of such enquiry, Executing Court has arrived at findings against applicant herein, by assigning reasons.
10. At this stage, appellants could at best sought permission to lead additional evidence and cannot under circumstances seek for direction as sought for, which is virtually for witch hunting. Apart from above, it also appears that application is a dilatory tactic, bordering on abuse of process of Court, therefore, application is not meritorious and is dismissed as such.
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11. Insofar as IA no.1/2022, it is seen that, if interim order of stay is vacated, respondent - decree holder would execute decree and take possession, which would virtually render appeal infructuous. Therefore, it is taken up along with main matter.
12. Ex.Petition no.15061/2006 was filed for execution of decree dated 05.03.1999 passed by this Court in RFA No.374/1989, which reads as under:
"In the result appeal is allowed. In modification of the judgment and decree passed by the trial Court it is held that the suit of the plaintiff for specific performance of the agreement of sale dated 23-8-1978 is decreed directing defendant -1 to execute the registered Sale Deed on receipt of the balance of the sale consideration of Rs.4,90,000/- along with interest at 16% per annum (now directed) from the plaintiff by defendant - 1 in respect of the suit schedule property on or before 5-5-1999 failing which the Court shall get executed the registered sale deed in favour of the plaintiff on depositing the entire amount, as directed, in court.
For the reasons mentioned above, the cross-objections are dismissed.
The plaintiff is also entitled for costs from the defendants throughout."-7- RFA No. 1177 of 2021
13. In said petition, applicant filed application for determination of his claim under Order XXI rules 58, 97, 101 and 103 of CPC. In affidavit, it was stated that father of applicant Sri. S.M. Muneer was absolute owner of schedule property having purchased same under sale deed dated 28.02.2008. It was stated that he had obtained decree of permanent injunction in O.S.No.1535/2010 on 22.07.2017. After knowing about pendency of Execution Petition, he filed application for impleading him in Execution Petition. However, on advise of his counsel, he did not press said application, instead filed separate application as third party - objector. Upon his death, said application did not survive for consideration. Therefore, instant application is filed in individual capacity and as legal heir.
14. It was further stated that O.S.No.8443/1980 filed for specific performance of contract by original decree holder against original judgment debtor was dismissed on 15.04.1989. Against said judgment and decree, RFA no.374/1989 was filed. This Court on 05.03.1989 allowed appeal and directed defendant no.1 therein to execute registered sale deed on or before 05.05.1999. Challenging same, Civil Appeals -8- RFA No. 1177 of 2021 no.1159/2000 and 1160/2000 were filed before Hon'ble Supreme Court. But they were dismissed on 08.02.2006. Thereafter Ex.No.15061/2006 was filed by Decree holder. In said petition, father of judgment debtor no.1 i.e., original defendant no.1 had filed application under Order 21 Rule 58, 97, 101 and 103 r/w Section 151 of CPC. Another application was filed under Section 47 of CPC.
15. Learned counsel for appellant submitted that impugned decree was inexecutable, as it was fraudulent in nature. It was submitted that stamp paper on which agreement of sale was drawn was purchased by Cauvery Arts and Crafts Emporium, and not by decree holder. It was submitted that said agreement of sale was executed on 23.08.1978. Prior to it, application was filed before Assistant Commissioner under Urban Land (Ceiling & Regulation) Act, 1976 (for short 'ULC Act) seeking permission for sale of suit property to Nagesh and Kasturi Rangaiah Benefit Trust (for short 'Trust'). However, said permission was refused vide order dated 26.06.1980.
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16. It was submitted that Ex.P.1 and P.11 and order at ExD.22 would indicate that agreement of sale was intended to be in favour of Trust represented by Sri. B.R. Rangaswamy in fiduciary capacity. Without stating that agreement of sale was in favour of Trust, plaintiff filed suit. Further, said order would also indicate that authority under ULC Act had directed Trust to approach appropriate authority. But, Sri B.R.Rangaswamy filed suit in his individual capacity seeking for specific performance of agreement of sale dated 23.08.1978. This showed that there were serious doubts about agreement of sale and also whether decree holder was intended to be purchaser, which was required to be determined by Executing Court, while determining rights of applicant.
17. Learned Counsel further submitted that even no permission as mandated under Section 92 of CPC was obtained, before filing suit. It was also contended that in agreement of sale, total consideration mentioned was Rs.5,00,000/-. Therefore, agreement of sale drawn on stamp paper of Rs.5/- would be insufficiently stamped and could not be looked into. Consequently decree passed on basis of such document was inexecutable. Elaborating same, it was submitted that one
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RFA No. 1177 of 2021Gurumurthy, who was also a trustee of Trust was brain behind agreement of sale.
18. It was further submitted that as per Ex.D.4 - stamp paper, on which agreement of sale drawn was issued in name of KSHD Corporation Ltd., was misused by plaintiff's vendor for executing agreement of sale in favour of decree holder. Though suit was filed in 1980, Ex.P.2 - draft sale deed dt.08.06.1982 submitted for approval to income tax authorities was subsequent to filing of suit. Same indicated foul play insofar as agreement of sale. Further, in Ex.P.2, it was stated that necessary permission under ULC Act had been obtained which was false, as such permission was in fact refused under Ex.D.22.
19. Learned counsel further submitted that appellants filed I.A.No.6/2022 seeking for direction to Hon'ble Justice Rajesh Tandon Former Judge, Uttarkhand High Court, to conduct enquiry in respect of agreement of sale regarding fraud played.
20. In affidavit filed in support of application, it was stated that Hon'ble Judge had consented to hold enquiry upon
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RFA No. 1177 of 2021direction issued by this Court. He further stated as per Section 34 of Indian Trust Act, prior to entering into agreement of sale, permission was mandatory, without which very agreement was rendered doubtful and decree was inexecutable.
21. In support of their submission, learned counsel for appellant have relied upon decision in Papaiah Sashtri & Ors. Vs. Government of A.P. & Others1.
22. On other hand, Sri. B.M. Arun, learned counsel for respondents no.1 to 6 submitted that along with I.A.no.1, I.A.no.3 was also filed under Section 47 of CPC virtually on same contentions. Both were rejected. However, no appeal was preferred insofar as rejection of I.A. no.3. It was submitted that while rejecting application, Executing Court had considered contentions urged by appellant. It was submitted that since applicant had not questioned order of rejection of I.A.No.3, he was estopped from urging same grounds in his challenge to order passed on I.A.no.1.
23. It was submitted that applicant claims to have purchased suit property under registered sale deed dated 1 2007 (4)SCC 211
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RFA No. 1177 of 202128.02.2008 for sale consideration of Rs.50,00,000/- for sale of 31,000 sq. ft. area situated in Richmond Town Bengaluru. But agreement of sale preceding sale deed dated 10.03.2006 showed consideration as Rs.5,50,00,000/-. Therefore, it was evident that applicant had played fraud on exchequer and therefore not entitled for consideration. It was further submitted that admittedly applicant purchased suit property after passing of decree in RFA No.374/1989 and its confirmation by Hon'ble Supreme Court.
24. Further Rule 102 of Order XXI of CPC prohibited invocation of Rules 98 and 100 of CPC by any pendente lite purchaser. Therefore, application in so far as Rules 98 and 100 of CPC was untenable. In support of his submission, he relied upon decisions in case of Usha Sinha Vs. Dina Ram and Others2 and also in Rahul S Shah Vs. Jinendra Kumar Gandhi and Others3.
25. It was submitted that since lis insofar as agreement of sale had attained finality by judgment passed by this Court which was confirmed by Hon'ble Supreme Court, same could 2 (2008)7 SCC 144 3 (2021) 6 SCC 418
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RFA No. 1177 of 2021not be sought to be reopened at this stage by seeking for fresh enquiry. It was further submitted that such issues if any, were to be dealt with by Executing Court, under Order XXI of CPC, therefore invocation of same in appeal would be misconceived.
26. Learned counsel further submitted that Hon'ble Supreme Court in Rahul S Shah's case (supra) has directed that Executing Court must expedite execution proceedings and as execution of decree was being delayed on one or other pretext, sought for issuance of appropriate directions to Executing Court.
27. Heard learned counsel, perused impugned order and record.
28. From above submissions, points that arise for consideration are:
"i) Whether impugned decree dated 04.10.2021 passed by LXXII Addl.
City Civil & Sessions Judge, at Mayo Hall, Bengaluru, (CCH-73) in Ex.P.No.15061/2006 on application filed under Order XXI Rules 58, 97, 101, and 103 r/w Section 151 of CPC, call for interference?"
ii) Whether applicant establishes that judgment and decree dated
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RFA No. 1177 of 202105.03.1999 in RFA no.374/1989 is vitiated by fraud?"
29. Since both points are interconnected, they are taken up together.
First ground of challenge is that agreement of sale - Ex.P.1 was unregistered and therefore, decree for specific performance could not be granted by relying upon decision of Hon'ble Supreme Court in Balram Singh Vs. Kelo Devi reported in 2022 SCC OnLine SC 1283.
30. On perusal of said decision, it is seen that Hon'ble Supreme Court was dealing with an unregistered agreement of sale under which possession was delivered. Ratio of said decision is, if on an agreement of sale, plaintiff was unable to get substantive relief of specific performance, then he would be disentitled from securing incidental relief also. It is therefore respectfully stated that said decision is not an authority for proposition that suit for specific performance cannot be maintained on an unregistered agreement of sale. Therefore, even said contention would fall to ground.
31. Insofar as next ground of challenge, viz., that stamp paper on which Ex.P.1 - agreement of sale was executed, was
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RFA No. 1177 of 2021issued to KHDC and therefore agreement of sale drawn on such stamp paper between individuals would be vitiated by fraud, it is seen that agreement of sale was subject matter of suit for specific performance in OS no.8443/1980. After full fledged trial, though suit was dismissed, RFA no.374/1989 filed against such dismissal was allowed on 05.03.1999 and suit was decreed directing defendant no.1 in OS no.8443/1980 to execute registered sale deed on or before 05.05.1999. Said decree, challenged by judgment debtor in Civil Appeal nos.1159/2000 and 1160/2000 were dismissed on 08.02.2006. Thus, validity of agreement of sale was upheld in said proceedings.
32. Even substantial contention that Ex.P1 - agreement of sale was intended to be in favour of Trust, applicant sought to substantiate said contention reliance is placed on application dated 04.06.1980 written by Syed Younus to Assistant Commissioner, seeking permission to sell suit property to 'Trust' marked as Ex.P.3 and order dated 22.10.1986 passed by Assistant Commissioner rejecting it marked as - Ex.D.22.
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RFA No. 1177 of 2021
33. On perusal of Ex.P.1, it reveals that specific performance was sought for in OS no.8443/1980. It is seen that agreement of sale was not executed in favour of 'Trust', but, it was in favour of an individual. Secondly, said suit was decreed by holding agreement of sale as proved. Thirdly, there is no reference in it to any permission or proceedings before Assistant Commissioner. In any case, parties in O.S. no.8443/1980 went to trial on validity and enforceability of said agreement. Therefore, instant ground of challenge does not deserve consideration.
34. On other hand, it is seen that, instant third party objector, purchased suit property under sale deed dated 28.02.2008, executed by GPA holder of original judgment debtor. As per rule 102 of order XXI of CPC, prohibits invocation of rule 98 and 100 by a transferee pendente lite. Therefore, application insofar as rule 97 and 101 of Order XXI of CPC would not be available to applicant.
Application would thus be confined only to examining its tenability under Order XXI rule 58 of CPC.
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RFA No. 1177 of 2021
35. Incidentally, applicant herein is none other than father of judgment debtor no.1, who had not only contested said proceedings, tooth and nail, but also availed all remedies of appeals. It would be relevant to reiterate that RFA no.374/1989 was decreed on 05.03.1999 and appeal before Hon'ble Supreme Court in Civil Appeal nos.1159/2000 and 1160/2000 were dismissed on 08.02.2006.
36. Hon'ble Supreme Court in Usha Sinha's case(supra) while specifically dealing with third party objectors application filed by pendente lite purchaser after referring to Order XXI Rule 102 of CPC and Section 52 of T.P.Act, 1882, held that such transferee pendente lite cannot seek for adjudication of his rights, as third party since, he could not claim to be stranger to suit. Therefore, instant application would not merit consideration and is rightly dismissed.
For above stated reasons, points for consideration are answered in negative. Consequently, following:
ORDER Appeal is dismissed with costs.
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Since decree under Execution is dated 05.03.1999 i.e., more than 23 years old, Executing Court is directed to expedite proceedings keeping in mind directions issued by Hon'ble Supreme Court in Rahul S Shah's case (supra).
Sd/-
JUDGE Psg*