Karnataka High Court
Mrs. Hemalatha Nayak vs Sri U Prabhakar Nayak on 17 April, 2017
Equivalent citations: 2017 (3) AKR 100, (2017) 174 ALLINDCAS 857 (KAR), (2017) 3 KCCR 2096, (2017) 4 KANT LJ 312, (2017) 3 ICC 221, (2018) 1 CIVLJ 760
Author: A.S.Bopanna
Bench: A S Bopanna
1
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF APRIL 2017
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
C.R.P.No. 486/2016
BETWEEN:
MRS. HEMALATHA NAYAK @
VIJAYA LAXMI SHENOY
W/O M. SUBRAYA SHENOY
AGED ABOUT 64 YEARS
TANK COLONY
VITOBA TEMPLE ROAD
MANGALURU - 575 002
... PETITIONER
(BY SRI PRAKASH, ADV. FOR
SRI JAGADESSH V.N., ADV.)
AND:
1 SRI U. PRABHAKAR NAYAK
S/O LATE SRI VITTAPPA NAYAK
AGED ABOUT 60 YEARS
KADRI TEMPLE ROAD
MANGALURU - 575 003
2 SRI VIJAYA KUMAR TALEPPADI
S/O SRI RAMAKRISHNA RAO
AGED ABOUT 62 YEARS
C/O B.N. RADHAKRISHNA RAO
FLAT No. 501,
SRI LAKSHMI RESIDENCY ROAD
KADRI TEMPLE ROAD
MANGALURU - 575 003
REPRESENTED BY HIS
POWER OF ATTORNEY HOLDER
SRI B.N. RADHAKRISHNA RAO
S/O B. NARASAPPAYYA
AGED ABOUT 73 YEARS
FLAT No. 501,
2
SRI LAKSHMI RESIDENCY ROAD,
KADRI TEMPLE ROAD
MANGALURU - 575 003
... RESPONDENTS
(BY SRI KRISHNAMURTHY G. HASYAGAR, ADV. FOR R2
NOTICE TO R1 IS DISPENSED WITH
V/C/O DATED 22.02.2017)
THIS PETITION IS FILED UNDER SECTION 115 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 02.11.2016
PASSED IN EX.No.132/2016 ON THE FILE OF THE II ADDL.
CIVIL JUDGE AND JMFC, MANGALURU, D.K., REJECTING THE
OBSTRUCTION PETITITON FILED UNDER ORDER XXI
RULE 97 TO 101 R/W SECTION 151 OF CPC.
THIS PETITION HAVING BEEN RESERVED FOR ORDERS
ON 11.04.2017, COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING :
ORDER
The petitioner is before this Court in this revision petition filed under Section115 of the Civil Procedure Code ('CPC' for short), assailing the order dated 02.11.2016 passed by the II Addl. Civil Judge & JMFC Mangaluru, D.K. in Ex. Case No. 132/2016.
2. The respondent No.2 herein has levied the execution petition in Ex. Case No. 132/2016 against the respondent No.1 herein for execution of the decree passed in O.S.No.330/2007. In the said proceedings the petitioner claiming right in respect of the property 3 involved has filed an application under Order XXI Rule 97 to 101 read with Section 151 of CPC in obstruction, to resist the execution of the decree. In that regard, the petitioner herein has claimed to have a share in the decreed property. Reference in that regard was made to the suit filed by her in O.S.No.339/2005 seeking for partition and separate possession which was decreed.
Though the said decree was set aside in R.A.No.127/2010, the matter is presently pending before this Court in R.S.A. No.871/2016. In that view, it was contended that the decree passed in O.S. No. 330/2007 cannot be executed against the petitioner herein. The said application in I.A.No.1 was opposed by respondent No.2 herein as the decree holder. The Executing Court after considering the rival contentions has rejected the application in I.A.No.1 through the impugned order dated 02.11.2016. That order is assailed in this revision petition.
3. The Registry at the outset while scrutinizing the revision petition papers has raised an objection relating to the maintainability of a Civil Revision Petition 4 by taking note of an order dated 22.11.2010 passed by this Court in RFA No. 1969/2010 wherein it is held that in view of the provision contained in Order XXI Rule 103 of CPC, an appeal will lie in respect of an order passed on an application under Order XXI Rule 97 to 101 of CPC. When it was posted before this Court to consider the said office objection, this Court had kept open the question of maintainability, ordered notice to the respondents and granted the interim order. The respondent No.2 on appearance has also raised the objection with regard to the maintainability. In that view, though the learned counsel for the parties have also addressed the arguments on the merits of the rival contentions, the question relating to the maintainability will have to be addressed at the outset, which is accordingly done herebelow.
4. This Court in RFA No.1969/2010, through the order dated 22.11.2010 has held that Order XXI Rule 103 of CPC states that where any application has been adjudicated upon under Rule 98 or Rule 103, the order made thereon shall have the same force and be subject 5 to the same conditions as to an appeal or otherwise as if it were a decree. In that view, the order impugned therein was held to be a decree and held the appeal to be maintainable in that case.
5. The learned counsel for the petitioner would however contend that in the instant case, the Executing Court has not held any enquiry nor recorded any evidence to consider the application in the nature of a suit and as such the manner in which the application has been rejected will not amount to a decree so as to maintain an appeal under Section 96 of CPC. In order to support such contention, the learned counsel for the petitioner has relied on the decision of the Hon'ble Division Bench of this Court in the case of M/s. Paramound Industries -vs- C.M.Malliga (ILR 1991 Kar 254) wherein it is held that having regard to the provisions contained in Rule 103 of Order 21, an order passed on adjudication under Rule 98 or Rule 100 of Order 21 of the Code shall have the same force and be subject to the same conditions as to an appeal, or 6 otherwise, as if it were a decree. Since the proceeding ceases to be summary proceeding, it shall have to be tried as a suit. The Executing Court cannot proceed further in the execution without determining the objections filed by such person in terms of Rules 98 to 103 of Order 21 of CPC in the same manner as a suit, irrespective of the fact whether or not an application is filed by the decree holder for removal of obstruction under Rule 97 of Order 21 CPC. In that light, the learned counsel for the petitioner herein would contend that though it is held by this Court that it should tried as a suit, in the instant case the Executing Court has not recorded evidence and considered as a suit and as such, in the nature of the consideration made by the Executing Court, no appeal would lie.
6. The learned counsel for the respondent No.2 would however contend that a consideration of the merits of the rival contentions in deciding the right as claimed in the application would be sufficient to constitute adjudication of the right claimed and there is 7 no compulsion that oral evidence must be recorded in every case. It is contended that in the instant case, the fact about the petitioner not being in physical possession was an aspect which was kept in view and in that light the other contentions were taken note by the Executing Court and the application is rejected as no right is made out. When such adjudication of the right as claimed is made, appeal alone will be maintainable and not a revision petition. The learned counsel for the respondent No.2 in order to support such contention has relied on the decision of this Court in the case of Munishamanna and another -vs- Dhanalakshmi and others (ILR 2014 Kar 4103) wherein the learned Judge has also taken note of the Division Bench decision in M/s. Paramound Industries (supra) and adverted to the scope and the nature of adjudication and has held a conspectus reading of Order XXI Rules 97, 98, 99, 100, 101 &103 would indicate that the executing Court is empowered to adjudicate the right, title and interest claimed in the property arising between the parties to a proceedings or between the 8 decree holder and the person claiming independent right, title and interest and an order is to be made in that behalf by the executing Court. On such adjudication, it becomes conclusive between the parties and it shall be construed as a decree enabling the aggrieved party to pursue the same in appeal as if it were a decree and such dispute is not to be agitated in a separate suit. The scheme of the Code is to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property which is the subject matter of execution. The nature of enquiry that would satisfy the requirement has also been considered by the learned Judge and in that regard it is stated that the incidental question is whether the enquiry contemplated would be recording of evidence, marking of documents and examination of such material in detail or a summary enquiry would suffice. It is held that in that regard no straight jacket formula can be prescribed in as much as, it may differ from case to case. If in a given case the material would prima facie 9 indicate that affording of opportunity to lead oral evidence is not called for, the objector cannot be heard to contend that the enquiry contemplated under Rule 98 of Order XXI would mean and include granting of permission to tender oral and documentary evidence as otherwise such order is without jurisdiction.
7. While arriving at such conclusion the learned Judge had referred to the decision of the Hon'ble Supreme Court and the learned counsel for the respondent herein has also relied on that decision in the case of Silverline Forum Pvt Ltd -vs- Rajiv Trust and another (AIR 1998 SC 1754) wherein it is held that the Executing Court can decide whether the Resistor or Obstructor is a person bound by the decree and he refused to vacate the property. The adjudicatory process is as contemplated under 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 averments made by the Resistor. The 10 Court can also direct the parties to adduce evidence for such determination if the Court deems it necessary.
8. If the position of law as enunciated is kept in view and the order impugned dated 02.11.2016 in Ex. Case No.132/2016 assailed in this Revision Petition is taken note, it is seen that the application which is considered through the said order is the one filed under Order XXI Rules 97 to 101 read with Section 151 CPC. On taking note of the objection filed by the decree holder, the Point No.1 raised for consideration is with regard to the possession of the decreetal property and the Point No.2 raised for consideration is the independent right, interest claimed by the Obstructor in the decreetal property. Both the said points are held in the negative for the reasons assigned therein. Insofar as the right, title and interest claimed to the property in question, the executing Court has taken note of the judgment in R.A. No.127/2010 and in that light has held that until the Obstructor succeeds in the R.S.A.No.871/2016, the right as claimed will not arise. The Executing Court has also recorded a finding 11 relating to the possession to conclude that the right to obstruct under Order 21 Rule 97 has not been made out. It is true that the parties have not tendered evidence in the nature as recorded in a suit nor has the Court found it necessary to seek for recording the oral evidence. However, the available material is taken into consideration and a finding has been returned. The finding as recorded may not satisfy the petitioner herein or her counsel. But, the issue that arises is about the appropriate proceedings or the forum in which the correctness or otherwise of such finding is to be questioned. Even if it is a wrong finding or a finding rendered without proper evidence, the position of law as noticed will indicate that in any case it will amount to a decree and will have to be assailed in an appeal as provided in law.
9. In that regard, the appropriate remedy to be availed and the manner in which the High Court is required to consider can be best appreciated if the relevant portion of the decision rendered by the Hon'ble 12 Supreme Court in the case of S.Rajeswari -vs- S.N.Kulasekaran and others [(2006) 4 SCC 412] is reproduced, "13. Learned Senior Counsel for the appellant-obstructor submitted before us that the application filed under Section 151, CPC being not maintainable nothing survived for further consideration. Having regard to the fact that the executing court substantially followed the procedure laid down by Rules 98 to 100 and thereafter passed an adjudicatory order, we may hold in favour of the respondent 1 to the extent that the application though filed with the label of Section 151, CPC was in fact treated as one under Order XXI, Rule 97. This, however, does not resolve the controversy before us because even if we treat the said application under section 151, C.P.C. as one under Order XXI, Rule 97, CPC, the order passed in that proceeding must be treated as a decree against which only an appeal lay to the appellate court. Respondent 1 did not appeal to the High Court and instead preferred a revision petition under Section 115, CPC. We have no doubt that in view of the provisions of Order XXI, Rule 103, C.P.C. which provide for appeal against the order passed by the executing court in such matters, no revision could be entertained by the High Court against that order in view of the clear prohibition contained in Section 115(2) of the 13 CPC, which in clear terms provides that the High Court shall not under Section 115 vary or reverse any decree or order against which an appeal lay either to the High Court or to any other Court subordinate thereto. The High Court appears to have interfered with the order of the executing court because it was under the impression that a long drawn litigation, perhaps engineered by the judgment-debtor, would result in great injustice, and therefore, if some relief could be granted by cutting short the procedure of appeal etc. the power under Section 115 could be exercised to do justice between the parties. In our view, the High Court could not have acted in a manner contrary to the express provision of Section 115(2) of the Code of Civil procedure. Since an appeal was provided under Order XXI, Rule 103 of the Code of Civil Procedure which treated the order passed by the executing Court as a decree subject to the same conditions as to appeal against such decree, a revision petition under Section 115 CPC against such an order is not maintainable. We must, therefore, hold that the High Court exceeded its jurisdiction in entertaining a revision petition under Section 115 CPC against an order passed in proceeding under Order XXI, Rule 97 CPC, even if we treat the application filed under Section 151 CPC to be an application under Order XXI, Rule 97 CPC."
(emphasis supplied) 14
10. If that be the position, in the instant case also the petitioner herein is required to avail the remedy of appeal to assail the order impugned herein. All contentions on merits with regard to correctness or otherwise of the impugned order are accordingly left open. Any of the observation contained herein is only for the consideration of the appropriate remedy and shall not be treated as an observation on merits of the claim nor shall it weigh in the mind of the Court considering the appeal.
11. In the result, for all the reasons stated above, the following:
O R D E R
(i) This Revision Petition is accordingly disposed of as not maintainable, with liberty to file the appeal in accordance with law.
(ii) The benefit of the interim order granted herein is extended by four weeks to 15 enable the appeal to be filed in the meanwhile.
(iii) Parties to bear their own costs.
Sd/-
JUDGE hrp/bms