Karnataka High Court
Sri Yathish M vs Smt B A Indiramma on 5 November, 2024
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RFA No.294/2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO.294/2024
BETWEEN:
SRI YATHISH M
AGED ABOUT 43 YEARS
S/O S M REDDY
R/AT NO.2619, 36TH A CROSS,
26TH , 9TH BLOCK,
4TH T BLOCK, JAYANAGARA
BENGALURU - 560 040 ...APPELLANT
(BY SRI.T SRINIVAS RAGHAVAN, SENIOR COUNSEL FOR
DR M SUNIL SASTRY, ADVOCATE)
AND:
1. SMT B A INDIRAMMA
Digitally AGED ABOUT 86 YEARS
signed by A K D/O LATE B M APPA REDDY
CHANDRIKA W/O LATE M VENKATA REDDY
Location: R/AT NO. 13, 2ND CROSS
High Court of
Karnataka SHANKARPURAM
BENGALURU - 560 004
REPRESENTED BY HER GPA HOLDER
SRI MANJUNATH V
AGED ABOUT 49 YEARS
S/O LATE M VENKATA REDDY
R/AT NO.13, 2ND CROSS
SHANKARPURAM,
BENGALURU - 560 004
2. THE SPECIAL LAND ACQUISITION OFFICER
III FLOOR, PODIUM BLOCK,
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RFA No.294/2024
VISHVESHWARAIAH TOWERS,
BENGALURU - 560 001.
3. THE MANAGING DIRECTOR/
LAND ACQUISITION OFFICER
BENGALURU METRO RAIL
CORPORATION LTD., (BMRCL)
DOUBLE ROAD, SHANTHINAGAR,
BUS STAND COMPLEX, 3RD FLOOR,
BENGALURU - 560 027 ... RESPONDENTS
(BY SRI.UDAYA HOLLA, SENIOR COUNSEL FOR
SRI.GOUTHAM S BHARADWAJ, ADVOCATE R1;
SRI.HARISH N N, ADVOCATE FOR R3 ;
NOTICE TO R2 IS DISPENSED WITH V/O DTD: 24.09.2024)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
READ WITH ORDER XLI RULES 1 & 2 OF CPC., PRAYING TO SET
ASIDE THE ORDER DATED 11.12.2023 PASSED ON IA NO.3 IN EX.
NO.45/2019 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE., REJECTING THE IA
NO.3 FILED UNDER ORDER XXI RULE 58, 101 READ WITH SECTION
151 OF CPC.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON
01.10.2024 COMING ON FOR PRONOUNCEMENT THIS DAY,
K.S.MUDAGAL J, DELIVERED THE FOLLOWING:
CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
HON'BLE MR JUSTICE VENKATESH NAIK T
CAV JUDGMENT
(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL) Challenging dismissal of his application under Order XXI Rule 58, 101 read with Section 151 of CPC, the third party applicant/objector in Ex.No.45/2019 on the file of the Prl. Senior Civil Judge, Bengaluru Rural District, Bengaluru has preferred this appeal.
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2. Brief facts of the case are as follows:
The appellant is the great grandson of one Muniswamappa. For better appreciation of facts of the case, the pedigree of B.M.Muniswamappa is extracted as follows:
B M Muniswamappa (Sons) B M Appareddy B M Venkataswamappa B M Ramaswamy B M Narayanaswamy B M Krishnamurthy B M Appaswamy Indramma (Decree arojamma Jayamma Died Unmarried Jayadeva Died Unmarried holder) B K Ravichandra B K Manamohan Daughter Renuka Will in favour of Sudarshini Manjunath B K Ravichandra & Susheela B K Manamohan Daughters of B M Muniswamappa B M Venkatamma B M Akkayyamma B M Saraswatamma Prabhakar Ramakrishna C L N Murthy Baskar Gayatri Sriramareddy Sarojamma Savitramma Rajalakshmi Susheelamma (Son) (Died) (Died) Lakshmidevamma Yathish(Appellant) Mangala (Wife) (Objector) Shivakumari Ravindra Jayadeva Sadguna Chandrakala Pramila (Wife) -4- NC: 2024:KHC:44489-DB RFA No.294/2024
3. For the better appreciation, the dates and events of the case are set out as follows:
1948 B.M.Krishnamurthy S/o late Muniswamappa filed O.S.No.15/48-49 against Muniswamappa and other sons seeking partition of joint family properties. Sy.No.15/1 of Beniganahalli village, K.R.Puram Hobli, Bengaluru East Taluk measuring 6 acres 15 guntas was one of the suit properties. 02.11.1950 The parties entered into compromise by filing petition under Order XXIII Rule 3 of CPC. Under the said compromise, the parties agreed for allotment of shares in certain rate and drawing up of preliminary decree accordingly. They further agreed that Arbitrators appointed shall effect physical division according to their shares in the preliminary decree. In the compromise decree, Schedule A of the properties consisted of innumerable landed properties and house properties situated at Baiyappanahalli village, Binnamangala and Beniganahalli village of -5- NC: 2024:KHC:44489-DB RFA No.294/2024 K.R.Puram Hobli. Sy.No.15/1 measuring 6 acres 15 guntas which is the subject matter of this case was one amongst them.
30.06.1952 Arbitrators who were appointed for division of the properties submitted their interim report proposing the actual division of the properties. 20.12.1952 Trial Court in O.S.No.15/48-49 set aside the arbitrators award on the ground that the arbitrators have not acted in accordance with the terms of the Rajinama/compromise petition in effecting the partition. Therefore parties were relegated to the position they stood occupied when the Rajinama was filed and accepted. The parties were directed to take steps to get the properties divided as per the terms of the compromise petition getting the Commissioner appointed as per law.
26.02.1965 Muniswamppa passed away. 01.04.1965 Notification under Section 6(1) of the Land Acquisition Act, 1894 ('the Act' for short) was issued for acquisition of Sy.No.15/1 of -6- NC: 2024:KHC:44489-DB RFA No.294/2024 Beniganahalli village for the purpose of NGEF.
Name of Appa Reddy, father of respondent No.1 was shown as the owner of the land 21.11.1966 B.M.Venkatamma, Akkayamma and Saraswathamma, daughters of Muniswamappa filed O.S.No.28/1966 claiming share in the properties of Muniswamappa. Admittedly Sy.No.15/1 of Beniganahalli was not the subject matter of the said suit. The said suit was decreed on 04.03.1971 and FDP No.67/2002 arising out of the said preliminary decree is pending. 01.11.1972 Ramaswamy passed away.
06.03.1980 B.M.Appaswamy, B.M.Akkayamma and B.M.Saraswathamma filed O.S.No.8842/1980 (Old No.69/1980) seeking partition in the share of deceased B.M.Ramaswamy. B.M.Venkatamma was arrayed as defendant No.3 in the said suit. Sy.No.15/1 was not the subject matter in the said suit also.
31.10.1980 Appaswamy passed away.
15.02.1982 B.M.Venkatamma and her sisters B.M.Akkayamma -7- NC: 2024:KHC:44489-DB RFA No.294/2024 and B.M.Saraswathamma filed O.S.No.468/1982 claiming share in the shares of B.M.Muniswamappa and their brothers Appaswamy and Ramaswamy. That suit was dismissed on 30.06.2003. Against such dismissal RFA No.1087/2003 was filed which came to be dismissed on 17.11.2011.
2004 Respondent No.1 and others filed FDP No.120/2004 seeking final decree for the properties left over in the arbitral award. Mother of the appellant was defendant No.13 in the said petition.
18.07.2008 Since NGEF was wound up, the acquisition in & 19.09.2008 respect of Sy.No.15/1 was not materialized. 22.07.2008 Notification under Section 4(1) of the Act was issued for acquiring Sy.No.15/1 along with other lands for the purpose of Bengaluru Metro Rail Corporation Ltd. However in the notification the owner of Sy.No.15/1 was shown as NGEF. 19.09.2008 Final notification under Section 6(1) was issued. 17.04.2012 First respondent filed W.P.No.37547/2009 for -8- NC: 2024:KHC:44489-DB RFA No.294/2024 quashing the acquisition initiated for the benefit of BMRCL. The said writ petition was partly allowed on 17.04.2012 upholding the acquisition for BMRCL and directing the respondents therein to pass the award in the name of present respondent No.1 in respect of Sy.No.15/1 measuring 6 acres 28 guntas and to pay compensation to her. 31.08.2012 Special Land Acquisition Officer passed award in favour of present respondent No.1 in respect of Sy.No.15/1 18.07.2017 On the application of present respondent No.1 under Section 152 CPC the order in W.P.No.37547/2009 was amended directing the LAO to pass the award in favour of respondent No.1 and pay compensation to her.
26.04.2019 Reference Court in LAC No.1/2013 enhanced the compensation payable to respondent No.1. 01.07.2019 Respondent No.1 filed Ex.No.45/2019 seeking execution of the award in LAC No.1/2013. 12.04.2021 MFA Nos.6082/2019 c/w 5511/2019 & 978/2021 filed by present respondent No.1 and authorities -9- NC: 2024:KHC:44489-DB RFA No.294/2024 questioning the award in LAC No.1/2013, were disposed of enhancing compensation to Rs.16 Crores and odd per acre with other statutory benefits payable to present respondent No.1. 11.06.2021 On the application of present respondent No.1 order in MFA Nos.6082/2019 c/w 5511/2019 and 978/2021 was amended awarding compensation of Rs.19 crores and odd.
15.06.2022 Appellant filed IA No.3 under Order XXI Rules 58, 101 read with Section 151 of CPC in Ex.No.45/2019 claiming interest in the award amount.
10.11.2022 Respondent No.1/decree holder filed objections to IA No.3 08.08.2023 One B.K.Renuka Reddy filed IA No.7 under Order XXI Rule 58 read with Section 151 of CPC claiming share in the award amount.
12.09.2023 In SLP (C) No.20436/2021 appellant filed application No.186300/2023 to implead himself as the party in the SLP(C) No.20436/2021 and applications were rejected.
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NC: 2024:KHC:44489-DB RFA No.294/2024 18.10.2023 Special Leave petition (C) No.20436/2021 filed by BMRCL challenging the judgment in MFA No.6082/2019 and connected matters came to be dismissed and the applications were rejected. 24.11.2023 Judgment Debtor No.2/BMRCL deposited Rs.56,80,46,449/- in Ex.No.45/2019 when the fixed deposits standing in their names were attached.
02.12.2023 Appellant filed IA No.12 under Order XXI Rules 26 and 29 read with Section 151 CPC seeking stay of release of the amount.
04.12.2023 Appellant filed IA No.13 under order XVI Rule 1 CPC to defer the matter for one week which came to be rejected.
11.12.2023 Trial Court by the impugned common order dismissed IA No.3 filed by the appellant as objector, to implead him and to stay the proceedings with costs of Rs.1,000/- on each of the applications.
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4. Out of the above order appellant has challenged only the order on IA No.3. The Trial Court rejected IA No.3 on the following grounds:
i) The proceedings in LAC No.1/2013 have attained finality on dismissal of SLP(C) No.20436/2021 where the decree holder/respondent No.1 is held to be entitled for compensation.
ii) Objector claims pre-existing rights on the basis of preliminary decree for partition in O.S.No.15/1948-49. On the same basis parties filed O.S.No.8842/1980 and FDP 120/2004 in which Sy.No.15/1 was not the subject matter.
iii) In the guise of Order XXI Rule 58 of CPC the Objector cannot expand the scope of execution and the Court cannot go beyond the decree.
iv) Applicant has no objection for recovery of money from Judgment Debtor No.2/BMRCL. Order XXI Rule 58 CPC is applicable where attachment is questioned. To claim interest on the amount deposited, Order XXI Rule 58 is not applicable.
v) The judgment in W.P.No.37547/2009 directing to pass the award in favour of decree holder and to pay compensation to her has attained finality. Allowing IA No.3
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NC: 2024:KHC:44489-DB RFA No.294/2024 amounts to modification of the said order invoking Order XXI Rule 58 of CPC. The same is impermissible.
vi) Objector neither challenged notification dated 18.07.2008 and 19.09.2008 nor set up any claim in the land acquisition proceeding under Section 30 of the Act claiming interest in the property, therefore, he is stranger to the land acquisition award.
vii) The Hon'ble Supreme Court in the judgment reported in Rahul S.Shah vs. Jinendra Kumar Gandhi & Ors ((2021)6 SCC 418) has directed the Courts for expeditious disposal of the execution petitions.
viii) The application lacks bonafides. Submissions of Sri Srinivas Raghavan, learned senior counsel appearing for the appellant:
5. The property attached and produced before the Court retains the nature of attached property, therefore Order XXI Rule 58 of CPC attracts to such property also. The Executing Court was in error in holding that the amount in deposit does not amount to attached property. The order of release is passed on the date of the impugned order itself. That goes to show that the amount continued to remain attached before the Trial Court. Therefore, application under Order XXI
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NC: 2024:KHC:44489-DB RFA No.294/2024 Rule 58 CPC was maintainable. The Executing Court ought to have conducted an enquiry under Order XXI Rule 58 CPC. The application was rejected without holding an enquiry and is wholly illegal. Some documents produced before this Court were not part of the trial court records. Therefore, they cannot be looked into. No opportunity was given to the appellant before passing the impugned order. The order does not say which application was heard and who was heard on those applications. The order sheet produced by respondent No.1 itself shows that I.A.No.3 was never heard by the Trial Court. Therefore, the order on I.A.No.3 is vitiated. In O.S.No.15/48-49 the proceedings were not concluded. Therefore, the contention that Sy.No.15/1 was allotted to the share of father of respondent No.1 is unsustainable. Respondent No.1's claim that on 17.07.1954 the parties agreed for part of the arbitral award and on their demand, only to that extent final decree was passed is a new introduction in the case. Nowhere the said document was produced. In RFA No.1087/2003 arising out of O.S.No.468/1982 this Court has held that there was no final decree in O.S.No.15/48-49 after rejection of the arbitral award. In the light of the same, Executing Court was in error in
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NC: 2024:KHC:44489-DB RFA No.294/2024 dismissing the application holding that the proceeding in LAC No.1/2013 attained finality. The order on application filed by Renuka Reddy has no bearing on the appellant's application. Sons of Muniswamappa have deprived the daughters of Muniswamappa all along. Therefore, appeal be allowed.
6. In support of his submissions, he relied on the following judgments:
1. Kumar Alias Kumaran v. Bose Ponnambalam and Ors.1
2. K.Venkarayappa v Ellen Industries and Anr.2
3. Southern Steelmet and Alloys Ltd., v. B M Steel, Madras3
4. Central Bank of India v. Cirilo Vales and Anr.4
5. Canara Bank v. Gurmukh Singh & Ors.5
6. Ganpati Ram Bhande v. Baliram Raghunath Jadhav6
7. Binatone Computers Pvt. Ltd. v. Setech Electronics Ltd.7
8. Neeminath alias Ravindra & Ors. v. Corporation Bank, Hubli & Anr.8
9. Maya Devi v. Lalta Prasad9 1 2024 SCC OnLine Mad 3404 2 1985 (2) APLJ 106 3 AIR 1978 Mad 270 4 2011 SCC Online Bom 1416 5 1999 (51) DRJ 491 6 1973 SCC Online Bom 117 7 2009 SCC Online Del 2522 8 1994 SCC Online Kar 363 9 (2015) 5 SCC 588
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10. Venu v. Ponnusamy Reddiar10
11. Shub Karan Bubna v. Sita Saran Bubna & Ors.11
12. Maddineni Koteswara Rao v. Maddineni Bhaskara Rao & Ors.12
13. Prasanta Kumar Sahoo & Ors. v. Charulata Sahu & Ors.13
14. Kattukandi Edathil Krishnan and Anr. v. Kattukandi Edathil Valsan and Ors.14 Submissions of Sri Udaya Holla, learned Senior Counsel appearing for advocate on record for respondent No.1.
7. Order XXI Rule 58 CPC can be invoked only to object the attachment, setting up claim to the attached property. The amount in deposit was not the attached property. Land acquisition proceedings originally commenced in the year 1964-65. In the notification, father of respondent No.1 was shown as owner of the property, even the land acquisition proceedings at the instance of BMRCL commenced in the year 2008. Admittedly, respondent No.1 alone fought them. At her instance in W.P.No.37547/2009, this Court has directed to pass the award in her name and pay her compensation. That 10 (2018) 15 SCC 254 11 (2009) 9 SCC 689 12 (2009) 13 SCC 179 13 2023 LiveLaw (SC) 262 14 (2022) 16 SCC 71
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NC: 2024:KHC:44489-DB RFA No.294/2024 judgment attained finality. Even the proceeding in LAC No.1/2013 which reached up to the Hon'ble Supreme Court went in favour of respondent No.1-DHR and attained finality. In the suits filed by the appellant's grandmother and mother, no share was sought in Sy.No.15/1. Only on the deposit of the amount before the Executing Court, the appellant with malafide intention went on filing one after another applications. He instigated Renuka Reddy also to file application which was dismissed. As the amount in deposit was not the attached property, order XXI Rule 58 and 101 of CPC are not applicable at all. If really appellant or his mother had any interest in the property, they could have made claim in the land acquisition proceedings and got the matter referred under Section 30 of the Act. Therefore Executing Court was justified in holding that in the guise of Order XXI Rule 58 CPC the appellant is seeking modification of the land acquisition award which has attained finality. The Executing Court has no jurisdiction to implead such parties to the case. After rejection of the arbitral award the parties accepting part of the award filed compromise petition in O.S.No.15/48-49. Accordingly, the compromise decree was passed and property was allotted to the share of father of
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NC: 2024:KHC:44489-DB RFA No.294/2024 respondent No.1. Sufficient opportunity was given to the appellant. The application was filed on 15.06.2022 and heard on 16.11.2023. The appellant could not be allowed to prolong the proceeding. The Land Acquisition Act is a self contained code under which disbursement of compensation has to be as per the procedure prescribed in the Act. When no application under Section 30 of the Act is filed, Order XXI Rule 58 cannot be resorted to. There was absolutely no merit in the application, consequently there is no merit in the appeal. Therefore, they are liable to be dismissed with costs.
8. In support of his submissions he relies on the following judgments:
1. Hemalata Sahu v. Sugyani Sahu15
2. Ramesh Singh v. State of Haryana & Ors.16
3. Land Acquisition Collector v. Surinder Kaur17
4. Bai Shakriben v. Special Land Acquisition Officer18
5. Shankar Choudhary v. The State of Jharkhand & Ors.19
6. Pradeep Mehra v. Harijivan J Jethwa20 15 AIR 2010 Orissa 35 16 (1996)4 SCC 469 17 (2013) 10 SCC 623 18 (1996) 4 SCC 533 19 2018 SCC Online Jhar 1221 20 (2023) SCC Online SC 1395
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7. G.H.Grant (Dr.) V. State of Bihar21
8. Union of India v. Budh Singh22
9. Prahlad Singh v. Col Sukhdev Singh23
10. Hasham Abbas Sayyad v. Usman Abbas Sayyad.24
9. Having considered the submissions of both side and on careful consideration of the material on record, the question that arises for determination is "whether the impugned order of rejection of I.A.No.3 is sustainable in law?".
ANALYSIS
10. The undisputed facts of case are already stated in the earlier portion of this judgment. Therefore, they are not reproduced in detail again here. It is sufficient to say that in the year 1965 land bearing Sy.No.15/1 measuring 6 acres 28 guntas was sought to be acquired initially for NGEF and subsequently in 2008 for BMRCL. In land acquisition proceeding initiated for the benefit of NGEF, the name of father of respondent No.1/decree holder was shown as the owner. Subsequently, in the acquisition notification issued for the benefit of BMRCL, NGEF was shown as the owner of the land. 21 1965 SCC Online SC 51 22 (1995) 6 SCC 233 23 (1987) 1 SCC 727 24 (2007) 2 SCC 355
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11. Respondent No.1 claiming that her father was the owner of the property, filed W.P.No.37547/2009 (LA-RES) seeking quashing of notification etc. In that case this Court while allowing the writ petition directed to draw award in her name and pay her compensation. Those proceedings have attained finality.
12. On the application of respondent No.1 seeking enhancement of the compensation the case was registered in LAC No.1/2013. In that case compensation was enhanced. In the appeals filed by respondent No.1 and the beneficiaries of the acquisition, compensation was further enhanced to Rs.19 crores and odd per acre. The beneficiaries unsuccessfully challenged the judgment of this Court in MFA No.6082/2019 and connected matters.
13. Admittedly at the instance of respondent No.1/decree holder for recovery of decretal amount the FD receipts of the beneficiaries/BMRCL were attached. Ultimately to get the said attachment raised, Judgment Debtor No.2/BMRCL deposited 58 crores and odd. IA No.3 is
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NC: 2024:KHC:44489-DB RFA No.294/2024 purportedly filed under Order XXI Rule 58, 101 read with Section 151 of CPC. The prayer in the application is as follows:
"That for the reasons stated that in the accompanying affidavit it is humbly prayed that this Hon'ble Court be pleased to permit the objector/claimant to file objection to this petition for granting of award amount, in the interest of justice and equity."
14. Relevant provisions of Order XXI Rule 58 of CPC which is also extracted by the Executing Court read as follows:
"58. Adjudication of claims to or objections to attachment of, property.--(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions herein contained:
Provided that no such, claim or objection shall be entertained--
(a) where, before the claim is preferred or objection is made, the property attached has already been sold; or
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(b) where the Court considers that the claim or objection was designedly or unnecessarily delayed.
(2) All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit.
(3) Upon the determination of the questions referred to in sub-rule (2), the Court shall, in accordance with such determination,--
(a) allow the claim or objection and release the property from attachment either wholly or to such extent as it thinks fit; or
(b)................"
15. The language of Order XXI Rule 58 CPC clearly indicates that the objection contemplated under the said provision is objection to the attachment of property claiming that the applicant has some interest in the property, therefore, the property is not liable to be attached. First of all, in this case the amount deposited before the Court is not under attachment though the same is in the custody of the Executing Court. Moreover the said amount was not recovered by
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NC: 2024:KHC:44489-DB RFA No.294/2024 attachment of property. Respondent No.2 itself has deposited the said amount.
16. In Hemalatha Sahu's case referred to supra the Orissa High Court in para 5 of the judgment while considering pre-condition of application under Order XXI Rule 58 CPC held as follows:
"5. The precondition of application of Order, 21 Rule 58, C.P.C are that there must have been an attachment of any property for execution of the decree and the claim should have been preferred or the objection should have been made to the attachment on the ground that such property is not liable to such attachment. The question, therefore, to be decided by the Court in an application under this rule is whether the property is liable to be attached or not."
(Emphasis supplied)
17. Reading of judgment in Kumar's case referred to supra relied on by Sri Srinivas Raghavan, learned senior counsel shows that the application in that case was filed objecting the attachment of the property, therefore, the said judgment is not applicable.
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18. When the application itself was not maintainable the question of holding enquiry does not arise at all. As already noted in the notification dated 01.04.1965 issued under Section 6(1) of the Act also, the name of father of respondent No.1 was shown as owner. That was not questioned even in the LAC proceedings which commenced from the year 2008. For about 14 years, the appellant or his mother did not lay any claim in the land acquisition proceedings. Only after deposit of the amount appellant comes up saying that he has an interest in the property. It is also material to note that appellant's applications to SLP to implead him as party were dismissed. His other application to implead him in the execution case were dismissed and the said order is not challenged. Therefore, that part of the order has attained finality.
19. In view of the fact that the proceedings in MFA No.6082/2019 c/w MFA Nos.5511/2019 & 978/2019 have attained finality and no application was made under Section 30 of the Act, the Executing Court was justified in holding that in all the applications the appellant is asking the Executing Court to traverse beyond the decree and the same is impermissible.
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NC: 2024:KHC:44489-DB RFA No.294/2024 In the light of the above discussions, the judgments relied on by the learned Counsel for the appellant that enquiry ought to have been conducted, do not advance his case.
20. So far as the contention that the appellant was not heard on the applications and no opportunity was given to him, the copy of the order sheet in Ex.No.45/2019 commencing from 28.02.2022 is produced by respondent No.1 in her compilation. The same shows that IA No.3 was filed on 15.06.2022, objections to the same was filed on 10.11.2022. When that was set down for hearing, in the mean time, decree holder filed IA No.4. Objections to IA No.4 was filed on 05.01.2023. Then Judgment debtor filed IA Nos.5 and 6 seeking direction to decree holder to give bank guarantee and for renewal of the FDs pending disposal of the SLP respectively and memo of calculations were filed. Then for some time the matter went on due to the pendency of SLP and undertaking given by Decree holder's counsel not to precipitate the matter.
21. On 08.08.2023 Renuka Reddy filed IA No.7 under order XXI Rule 58 of CPC. Advocate for JDr No.2/BMRCL produced DD dated 23.11.2023 for sum of Rs.56,80,46,469/-
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NC: 2024:KHC:44489-DB RFA No.294/2024 on 24.11.2023. The order sheet dated 16.11.2023 shows that the parties were heard on the applications. The Order-sheet dated 27.11.2023 records that the matter was posted to 02.12.2023 at 4.00 p.m. to hear third party applicants. The order sheet dated 11.12.2023 records that rejecting the application of the objector/applicant for adjournment, both decree holder and third party applicants were heard and the matter was posted for orders.
22. Under Section 114(e) of the Indian Evidence Act, 1872 there is a presumption that judicial and official acts have been regularly performed. There is nothing contrary to the order sheet dated 11.12.2023 to show that the applicants were not heard. Therefore, there is no merit in the contention that the applicant was not heard by the Executing Court.
23. In the written submissions of appellant which is not even signed by his counsel, the appellant states as follows:
".... the Executing Court has been completely insensitive to such claim..."
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24. Using of such language against the Court is highly deprecable. The appeal is vexatious, unfit for admission and liable to be dismissed with heavy costs. Hence the following:
ORDER The appeal is dismissed with costs of Rs.50,000/- payable by the appellant to respondent No.1.
Sd/-
(K.S.MUDAGAL) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE AKC List No.: 19 Sl No.: 2