Karnataka High Court
Smt Divya N vs Sri Shadakshara Murthy on 17 December, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
REGULAR FIRST APPEAL No.1948 OF 2018
BETWEEN
1. Smt. Divya N.
W/o Harish C
Aged about 26 years
2. Unnamed Baby
D/o Divya Harish C.
Aged about 2 years,
Since Appellant No.2 is minor
Represented by her natural guardian
Mother i.e, Appellant no.1
Appellant no.1 and 2 are
Residing at No.102, Skanda Sai,
2nd C Cross, Kasturi Nagar,
Bengaluru - 560 043.
...Appellants
(By Sri. V.F. Kumbar, Advocate)
AND
1. Sri. Shadakshara Murthy
S/o Late Puttaswamaiah
aged about 31 years,
No.266, 5th Main, 4th Cross,
Sadananda Nagar,
Bengaluru -38.
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2. Sri. Harish Kumar C
S/o R. Chinnaswamy,
aged about 31 years,
No.2CC - 102, East of NGEF layout,
Kasturinagar,
Bengaluru - 560 043.
...Respondents
(By Sri. Syed Parvez Ali, Advocate for R-1)
This RFA is filed under Section 96 of the CPC, against
the order dated 09.11.2018 passed on I.A. in
Ex.P.No.2703/2017 on the file of the V Addl. City Civil
Judge, Bengaluru dismissing the IA filed under Order XXI
Rules 97 to 101 read with Section 151 of CPC.
This RFA coming on for admission, this day, the Court
made the following :
ORDER
Heard the appellants' counsel and the respondents' counsel at the time of admission.
2. The appellants resisted the execution of decree for ejectment by filing an application under Order 21 Rule 97 CPC. The suit was filed by the 1st respondent against the 2nd respondent. The 1st appellant is the wife and the 2nd appellant is the daughter of the 2nd respondent. The appellants claim that the 1st appellant's father financed the 3 2nd respondent to purchase the suit property. It is not disputed that the 2nd respondent and his father viz., R. Chinnaswamy purchased the suit property and was gifted the same to Meenakshi Sundari, i.e., the mother of the 2nd respondent and wife of R. Chinnaswamy. This Meenakshni Sundari sold the very same property to the 1st respondent. Thereafter the 1st respondent instituted the suit for ejecting the 2nd respondent stating that the latter continued in the suit property as a licensee. These circumstances make it clear that the contention taken by the appellant that the 1st appellant's father financed the 2nd respondent to purchase the property cannot be appreciated. Even if financial assistance was given, the appellants do not have right to object the execution. The appellants have no independent title to resist the execution. Rightly the trial court came to conclusion that application Under Order 21 Rule 97 CPC had to be dismissed. Enquiry under these circumstances was not necessary. Therefore this appeal, being devoid of merits, is dismissed.
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3. By mistake the appellants' counsel has paid the court fee. He is before this court challenging the order passed on application under Order 21 Rule 97 CPC. Though the order passed on the said application amounts to decree, no court fee is payable because in the trial court no court fee was paid on the said application. Therefore according to Section 67 of the Karnataka Court Fees and Suits Valuation Act, appellants are entitled to refund of the court fee. Registry is directed to refund the court fee paid by the appellants.
Sd/-
JUDGE sd