Karnataka High Court
Sri Venkataramanappa vs Sri Kiniya Ram on 3 February, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
IGH CO IGH COURT OF KARNATAKAHIGH CCURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURTCPRARNATA IN THE HIGH COURT OF KARNATAKA, BANGALORE : | DATED THIS THE 3" DAY OF FEBRUARY 2012. THE HON'BLE MR.JUSTICE ANAND BYRARELDY SO REA.No.208 OF 2012 BETWEEN: SRI VENKATARAMANAFPA, S/OLATE BYANNA, AGED ABOUT 71YRS, R/A NO.14/16, HEBBAL KEMPAPURA POST, YELAHANKA HOBLI, BANGALORE NORTH TALUK, BANGALORE-S8002¢. _ ... APPELLANT (BY SRI: SUNIL s RAO, , ADVOCATE) 1 SRI KINIYA RAM, _. $/O DURUGAARAM, . AGED ABCAJT50 YEARS, _ .R/A 18T MAIN, HEBBAL KEMPAPURA POST, . YELAHANKA HOBLI, BANGALORE NORTH TALUK, BANGALORE-560024. 2. SRIB GOPALAPPA, _ §/O LATE BYANNA, AGED ABOUT 61 YEARS, R/A NO.14/16, HEBBAL KEMPAPURA POST, YELAHANKA HOBLI, BANGALORE NORTH TALUK, BANGALORE-360024. Cs SH COURT CY'RARNATARATHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH | 3 SRIBGOVINDA, S/O LATE BYANNA, AGED ABOUT 45 YEARS, R/A NO.14/16, HEBBAL KEMPAPURA POST, ~ YELAHANKA HOBLI, - BANGALORE NORTH TALUK, 7 BANGALORE-560024. . | 4 SMT PUTTAMMA D/O LATE BYANNA, - AGED ABOUT 47 YEARS, . R/A NO.14/16, HEBBAL KEMPAPURA POST, YELAHANKA HOBLI, MN BANGALORE NORTH TALUK, oe BANGALORE -56002+. a .. RESPONDENTS
(BY SRE CS: PRASARNA KUMAR, ADVOCATE FOR CAVEATOR/Ri) Ya rns. RFA 8 FILED UNDER SECTION 96 READ WITH ORDEP 41 RULES 1 AND 2 OF CFC, AGAINST THE JUDGMENT AND DECREE DATED:31.01.2011
- PASSED ON LA.S IN EX.P.1940/2011 ON THE FILE OF
- THE V-ADDL. CITY CIVIL JUDGE, BANGALORE, 'DISMISSING THE LA.5 FILED U/O-21, "RULE-97, R/W, SEC. 131 OF CPC.
HIS REGULAR FIRST APPEAL COMING ON FOR os ceo THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Heard the learned counsel for the parties.
& iGH CO r KARNATA IKIGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR
2. The appeal was found to be defective, I:
that, the Office has raised objections. However, the "
learned counsel for the appellant pisads "urgency end therefore, the appeal was heard reganting admission, sa | the respondent has entered c cavent. |
3. At the outset, it in Ser that the appellant was ar objector in the 'exooution proceedings of the decree in iavour of the fret respondent herein who had filed the suit for declaration and injunction cod had cbtainod the judyment and decree in his favour. The same Was the suabject- -matter of challenge in " an eypea! and thereafter before the Apex Court and hs _ attained Baality. The judgment debtor had initially filed a 1 writ petition challenging the execution proceedings "and that had attained finality in the same having been 7 os It is contended by the appellant that he had | ms approached the executing Court and had filed an application under Order XX Rule 97 of The Code of Civil Procedure, 1908{hereinafter referred to aa the *"CPC", for brevity) seeking to object to the execution of & "SH COURT CF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH the decree on the ground that he was one of the legal representatives of the deceased-judgment debtora 1 and . "
2 and that he was not made a. 'party to the 'eciginal proceedings, though as a legal representative iue was a :
necessary and proper party sn the decree had been obtained behind his back. . The appellant further aseerts that he is in pocsession of the 'Property and therefore, the. sxecuting Court having rejected his application o on the sole giourd that Order XXI Rule 97 of The CPC doce not provide for - consideration of an application by a 'person, 'guch as the appellant is erroneous in law. aince he wae in poasession along with | hi moth tll ber death and thereafter continued t : exercise posvession over the suit schedule property. The | application being rejected is therefore contrary to law o>. and contrary to a catena of decisions rendered by the | . "Apex Court as well as this Court. He would place ; Ss reliance on a few of the judgments, namely, M/s. _ Paramound Industries .vs. C.M. Maligia [LR 1991 KAR 254]; Vasudev Dhanjibhai Modi .vs. Rajabhai Abdul 3 IIGH COURT OF KARNATAKAHIGH CCURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO Rehman and Others {1971} 1 S.C.R.66]; Brahe Chaudhary vs. Rishikesh Prasad Jaiswal and others "
[AIR 1997 SC 856] and would) submit 'thet the _ appellant is left with no alternative remedy ani he faces | the prospect of immediate ejection, from the 'suit schedule property without an: opportunity of being heard, which reeults in a miscarriage and failure of justice. The cxocuting ¢ Court having surmarily rejected the application | cn 1 tie specious pisa that he would have no joous-standi t to 'ile an application under Order XXI Rule 97 of The CPC is therefore a blatant error which requires correction by this Court and therefore, seeks _ | the indulgence of this Court to consider the appeal on _ On the other hand, the learned counsel, who
- Sue 'entered caveat, for the first respondent would mo oe submit that the present appellant's endeavour is only to ae = stall the execution proceedings and to deny the benefit of the judgment and decree, which has been obtained after long drawn out legal proceedings stretching over b 'GH COURT CF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH ¢ two and a half decades. The bona files of the appellant are also suspect. It is pointed out that the appellant claims that he was residing with his mother, who was a. 7 party to the suit and the appellant claims to be 71 years | old. Therefore, the appellant war sufficiently mature to have known about the, proceedings. that were long drawn out. The appellant Seiigning ignorance of the proceedings is. only a. ruse to prevent the executing proceedings and 'therefore, requires to be dealt with firmly by this Coury, 1 the appellant resorting to such methods. Tt is ako 'pointed out that in the very application before the trial Court, the appellant has 7 : etated that even though he was residing in the schedule > property along with his mother he withdrew from the sams over a period of time after his mother's death and Ope is residing at Chintamani with his children, away a from the schedule property. 'Though incidentally, | Ss elsewhere in the application, he has stated that he _ exercises possession over the suit schedule property. The express statement that he has withdrawn from the & IGH COURT OF KARNATAKAHIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO:
suit schedule property would indicate that he he is no | longer in posseasion. Even if the appellant claims thet ~ | he w the legal representative aral is 'goorant of the proceedings, the fact that he does net have poaseesion :
of the suit property would: militate against the maintainability of the. very application and therefore, seeks rejection of the peal at che tance
5. In the face of the rival { contentions, the fact remains that the. appellant's mother was alive during the pendency of the proceedings and the appellant having claimed that be was residing along with her _ would have certainly known about the proceedings. In : aay. event, it was for the other legal representatives to hve appraised + to the Court that the present appellant, who 'was also a kgal representative had been left out.
- ot carmot be expected of the respondents to ascertain Tt > the existence of the appellant and to bring it to the oo, _ notice of the Court. It was also pointed out that the earlier proceedings, where the judgment debtor had filed an appeal, did not indicate that the appellant was one of ¢ "SH COURT CF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH ¢ the legal representatives. In any event, the ARETESS, statement by the appellant that he had withirawn from . - is residing at Chintamani along with | his chikiren would :
be inconsistent with hiz further | statement 'that he exercises possession over the suit Property. In any event, it was for the appellant to. have demonstrated that he was indeed 'orally unaware of the proceedings and was therefore « a. necessary and proper party, who had been 'Te out of the proceedings. This is not apparent. from the circumstances stated above. He claime to have lived with his mother during her lifetime, 7 "who wa alive during the pendency of the suit.
; Therefore, on facts, it cannot be straightaway accepted . that the eprellant i before thi Court with a gemuine ". emuse.
6. Insofar aa the decisions cited at the Bar are
-- _ concerned, in the case of M/s. Paramound Industries, the facts would indicate that the petitioner was challenging an order of eviction under the Karnataka ~ S IGH COURT OF KARNATAKAHIGH CCURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH CO! Rent Control Act and was claiming to be in possession | of the 'suit schedule property. It was in that contest "
that the decision was rendered arxi would thereiore be. :
inconsistent with the facte of the present cast on hand, In the caee of Brahmdeo Chaudhary, the appellant before the Apex Court was a stranger ocoupying the decretal premises and had offered resistance to the execution of the. decree and therefore, it again was a case, which would rst t apply te the tacts of the present case or hard, In the case of Vasudev Dhanjibhai Modi, a dispute was rained 0 regarding the jurisdiction of the Court to entertain ® suit for ejectment when the
- 'premises: was governed by the Bombay Rents Hotel and ° Lodging House Ratea(Contro) Act 57 of 1947. This again | was decidei with reference to the definition of "premises" under the said Act. Accordingly, it would s : have no bearing on the facts and circumstances of the : Ss present case on hand. Therefore, even though, it is a ~~ gettled legal position that even a third party-stranger who was in possession of the property could rake E WH COURT CF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH f 10 objections under Order XXI Rule 97 of The CPC, though the language of the provision does not indicate any yeh & right of a third party, which is however, enttin! by a | catena of decisions. This would not help the appellant t to. defend hin case having reyard io tho admitted -- circumstances in the present case on hand.
7. Therefore, ths te ope rete
8. The learned couniel for the appellant is permitied to comply 'with 'the 'Office objections for formality' sake. --
Sd/-
JUDGE