Karnataka High Court
Sri S Vignesh Shishir vs Kumari Divya Paramesh on 1 July, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1st DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR FIRST APPEAL NO. 211 OF 2025 (RES)
C/W
REGULAR FIRST APPEAL NO. 214 OF 2025
IN RFA NO.211/2025
BETWEEN
SRI. S. VIGNESH SHISHIR
S/O K. SATHISH
AGED ABOUT 33 YEARS
R/AT NO.04, 1ST MAIN, 1ST CROSS
NEHARUNAGAR, SHESHADRIPURAM
BENGALURU-560 020.
...APPELLANT
(BY SRI. RAJESH MAHALE, SENIOR ADVOCATE FOR
SRI. JAGADEESH D.C., ADVOCATE)
AND
1. KUMARI DIVYA PARAMESH
AGED ABOUT 30 YEARS
2. KUMARI DARSHANA PARAMESH
AGED ABOUT 24 YEARS
BOTH ARE THE CHILDREN OF
SRI. D.S. PARAMESH
RESIDING AT NO.13, HARTFILED ROAD
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NEWTON P.A. 18940
UNITED STATES OF AMERICA
REPRESENTED BY THEIR G.P.A. HOLDER
SRI. SHIVAKUMAR A
S/O LATE SRI. ANJINAPPA K.V.
AGED ABOUT 56 YEARS
R/O NO.13, 2ND A CROSS
II MAIN, COCONUT GARDEN
NAGARABHAVI ROAD
BANGALORE-560 072.
3. SRI. SATISH .K
S/O JAYARAM
AGED ABOUT 61 YEARS
R/AT SIDDA ENCLAVE, FLAT NO.007
3RD FLOOR, NO.4/6, OLD NO.31 AND 31/1
1ST CROSS, 1ST MAIN ROAD,
NEHARU NAGAR, SHESHADRIPURAM
BANGALORE-560 020.
...RESPONDENTS
(BY SRI. H.N. SHASHIDHAR, SENIOR ADVOCATE FOR
SRI. SHANMUKHAPPA, ADVOCATE FOR R1 AND R2)
THIS RFA IS FILED UNDER SECTION 96 OF CPC, PRAYING
TO SET ASIDE ORDER DATED 08.01.2025 PASSED IN
E.P.No.922/2024 ON I.A.1/2024 ON THE FILE OF XX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
CITY.
IN RFA NO.214/2025
BETWEEN
SRI. S. VIGNESH SHISHIR
S/O K. SATHISH
AGED ABOUT 33 YEARS
R/AT NO.04, 1ST MAIN
3
1ST CROSS, NEHARUNAGAR
SHESHADRIPURAM
BENGALURU-560 020.
...APPELLANT
(BY SRI. RAJESH MAHALE, SENIOR ADVOCATE FOR
SRI. JAGADEESH D.C., ADVOCATE)
AND
1. KUMARI DIVYA PARAMESH
AGED ABOUT 30 YEARS
2. KUMARI DARSHANA PARAMESH
AGED ABOUT 24 YEARS
BOTH ARE THE CHILDREN OF
SRI. D.S. PARAMESH
RESIDING AT NO.13
HARTFILED ROAD
NEWTON P.A. 18940
UNITED STATES OF AMERICA
REPRESENTED BY THEIR G.P.A. HOLDER
SRI. SHIVAKUMAR .A
S/O LATE SRI. ANJINAPPA K.V.
AGED ABOUT 56 YEARS
R/O NO.13, 2ND A CROSS
II MAIN, COCONUT GARDEN
NAGARABHAVI ROAD
BANGALORE-560 072.
3. SRI. SATISH .K
S/O JAYARAM
AGED ABOUT 61 YEARS
R/AT SIDDA ENCLAVE
FLAT NO.007, 3RD FLOOR
NO.4/6, OLD NO.31 AND 31/1
1ST CROSS, 1ST MAIN ROAD
4
NEHARU NAGAR
SHESHADRIPURAM
BANGALORE-560 020.
...RESPONDENTS
(BY SRI. H.N. SHASHIDHAR, SENIOR ADVOCATE FOR
SRI. SHANMUKHAPPA, ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING
TO SET ASIDE THE ORDER DATED 08.01.2025 PASSED ON
I.A.NO.1/2024 IN EXECUTION PETITION NO.924/2024 ON THE
FILE OF THE XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
AT BANGALORE.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 20.06.2025, THIS DAY ORDER WAS
PRONOUNCED THEREIN, AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
C.A.V. JUDGMENT
The captioned appeals are by a common objector in
O.S.Nos.71/2021 and 76/2021 assailing the order of the
Executing Court rejecting the application filed under Order
XXI Rule 97 of CPC.
2. For the sake of convenience, the parties are
referred to as per their rank before the Executing Court.
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3. During the pendency of the execution
proceedings in Ex. Nos.922 and 924/2024, a third-party
objector filed application in both the suits under Order XXI
Rule 97 of the Code of Civil Procedure, 1908, asserting
possessory rights over the schedule property. The objector
contended that the decree-holder had executed an
agreement to sell in his favour and, therefore, the
execution of the ejectment decree in O.S. No.71 and
76/2021 would seriously prejudice his rights. The
applications were strongly opposed by the decree-holder,
who contended that the objector is a total stranger to the
proceedings and has no locus standi to maintain an
application under Order XXI Rule 97 of CPC. The decree-
holder further submitted that the objector had taken
contradictory stands on one hand claiming to be an
agreement holder, and on the other asserting tenancy
rights under the decree-holder.
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4. Upon consideration of the pleadings and material
on record, the Executing Court held that the objector was
relying on an unregistered agreement to sell, which cannot
confer possessory rights enforceable in execution
proceedings. The Court observed that if the objector seeks
to enforce such an agreement, the appropriate remedy lies
in instituting an independent suit for specific performance.
Accordingly, the applications filed under Order XXI Rule 97
CPC in the both the suits were rejected.
5. The learned Senior Counsel appearing for the
appellant-objector vehemently argued that the Executing
Court erred in rejecting the application summarily, without
providing the objector an opportunity to lead evidence in
support of his claim. He submitted that such a summary
rejection amounts to denial of procedural fairness and
violation of the principles of natural justice. It was further
contended that the objector, having been misadvised,
invoked Order XXI Rule 97 CPC based on an agreement to
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sell; however, the correct legal position is that he is a lawful
tenant inducted by the decree-holder. He argued that the
decree-holder, under the guise of executing a decree
passed in an ejectment suit, is illegally attempting to
dispossess a lawful tenant.
6. The learned Senior Counsel further submitted
that the finding of the Executing Court regarding the
applicability of res judicata is wholly misconceived,
especially in light of the liberty granted by this Court in
W.P.No.1682/2024. He placed reliance on the following
judicial pronouncements in support of his submissions:
1. Asgar and Others vs. Mohan Varma and Others,
(2020) 16 SCC 230;
2. Noorduddin vs. Dr. K.L. Anand, (1995) 1 SCC 242;
3. Smt. Naney Pais vs. S. Surendra and Another, ILR
2010 KAR 629;
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4. M.G. Chandrashekar vs. P. Kanakambara Rao and
Others, RFA No.1007/2009;
5. Sri S. Vignesh Shishir vs. Sri D.S. Paramesh and
Another, W.P. No.2967/2024.
7. In response, the learned Senior Counsel for the
decree-holder contended that the objection is wholly
malafide and a clear attempt to frustrate the execution of a
lawful decree. He submitted that the original judgment
debtor against whom the decree was passed is the father of
the present objector. He drew attention to the lease deed
executed in favour of the judgment debtor, which is a
registered document covering the period from 01.06.2019
for three years. It is argued that the objector, being the son
of the judgment debtor, cannot independently claim to be a
tenant based on an alleged oral lease from 2018. He also
submitted that the objector had earlier filed a similar
application which was dismissed. Therefore, the liberty
reserved by this Court in W.P. No.1682/2024 cannot be
9
construed as a licence to file successive applications.
Reference was made to the trial Court's order sheet, which
records the rejection of the earlier application.
8. Having heard the learned Senior Counsel on both
sides and upon perusal of the affidavit filed in support of
the application under Order XXI Rule 97 CPC, the following
points arise for consideration:
(i) Whether the objector is entitled to a full-fledged
enquiry in view of the liberty granted by this Court in
W.P.No.1682/2024?
(ii) Whether the Executing Court was justified in
summarily rejecting the application filed under Order
XXI Rule 97 of the Code of Civil Procedure, 1908?
(iii) Whether the objector can seek adjudication of his
alleged rights arising out of an agreement to sell in an
execution proceeding where the decree-holder is
seeking to enforce a decree for ejectment passed in
O.S.No.71/2021?
(iv) What order?
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FINDING ON POINT No.(i):
9. The co-ordinate Bench while disposing of the writ
petition filed by the objector in W.P.1682/2024 issued
directions and reserved liberty to obstructer to seek
adjudication at the hands of the executing Court. The
directions issued by the Co-Ordinate Bench would be
relevant and the same are extracted as under:
"ORDER
i. The writ petition is hereby disposed of.
ii. The impugned order dated 26.10.2023
passed on I.A. No.VII in O.S.No.76 of
2021 on the file of the XX Additional City
Civil and Sessions Judge, Bengaluru City,
is modified.
iii. I.A. No.VII is disposed of by directing
that any judgment, decree, order, etc.,
passed / to be passed in O.S. No.76 of
2021 would not be biding upon the
petitioner nor will it affect his alleged
right, title, interest, possession, etc. over
the suit schedule property.
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iv. Liberty is reserved in favour of the
petitioner to file appropriate
application(s) in the execution
proceedings to be instituted by the
respondents pursuant to the judgment
and decree to be passed by the Trial
Court.
v. All rival contentions of the petitioner and
the respondents in the present petition,
in the suit as well as in the execution
proceedings to be instituted in future,
are kept open and no opinion is
expressed on the same.
10. Though liberty was reserved by the Co-Ordinate
Bench, the decree-holder has produced the order sheet
dated 17.7.2023 in O.S.No.71/2021. This Court deems it fit
to cull out the same which reads as under:
"Case is advanced by the Learned Counsel for
impleading applicant and hence matter is taken up
for today's board.
Counsel for the plaintiff and impleading
applicant present.
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Counsel for impleading applicant files I.A.No.
VIII U/o 1 rule 10 r/w/s CPC and also files list of
documents (Xerox).
Counsel for the plaintiff submits that the
impleading applicant has already filed similar
application on 22.04.2022 and the same is rejected
by this court.
Hence, this court cannot entertain the same
application and it shall be rejected.
Perused the order sheet dated 22.04.2022.
On perusal it is found that the impleading
applicant filed the similar application and which was
rejected by this court.
Now, the case is posted for Judgment the
applicant files the similar application, this court of
the opinion that similar application cannot be
entertain again rejected and it shall be rejected.
Hence, the application filed by the impleading
applicant is rejected.
Call on for Judgment by 18.07.2023."
11. The extracted portion of the record, as noted
above, clearly indicates that the objector had earlier filed a
similar impleading application during the pendency of the
original suit. The trial Court, while considering the second
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impleading application filed by the objector at a later stage,
has categorically recorded that the earlier application was
rejected by order dated 22.04.2022. This crucial fact
namely, the dismissal of the prior application was not
disclosed by the objector at the time of seeking liberty
before the Co-ordinate Bench in W.P. No.1682/2024. The
liberty granted by the Co-ordinate Bench, which permitted
the objector to pursue remedies available in execution
proceedings, appears to have been obtained without placing
this material fact on record. Such suppression of relevant
facts amounts to an abuse of process and disentitles the
objector from claiming any equitable relief based on the
liberty so granted.
12. In light of the above, this Court is of the
considered view that the principle of res judicata squarely
applies to the present proceedings. The earlier rejection of
the objector's impleading application in the suit
proceedings, which attained finality, bars the
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maintainability of a similar claim in the execution stage,
especially when it is founded on identical assertions.
Consequently, the liberty granted by the Co-ordinate
Bench, having been obtained by suppression of material
facts, cannot be relied upon to reopen an issue that stands
concluded. Accordingly, Point No.1 is answered in the
Negative.
FINDING ON POINT Nos. (ii) and (iii):
13. Before this Court proceeds to examine the rival
contentions, it is crucial to first consider the averments
made in the affidavit filed in support of the application
under Order XXI Rule 97 of the Code of Civil Procedure,
1908. Paragraphs 2 to 5 of the said affidavit are particularly
relevant for the adjudication of the present controversy and
are accordingly extracted below for ready reference:
"2) I state that I had filed an application under order 1
rule 10 CPC before the trial court in O.S.no.71/2021 and
this Hon'ble court had dismissed the I.A. for impleading
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and I had approached the Hon'ble High court of
Karnataka at Bengaluru by filing W.P.no.2967/2024 and
the Hon'ble High court has passed order dismissing the
writ petition but reserved liberty to me to file applications
in the execution proceedings.
3) I am in possession of the suit schedule property by
way of being put in possession by the decree holder on
the basis of an agreement to sell. I state that the
judgment and decree is passed without giving me an
opportunity to bring forth the fact of I being in possession
on the strength of the sale agreement.
4) I state that the decree holder is in a hurry to execute
the decree and I will be evicted in the process of
execution of delivery warrant.
5) I state that if the delivery warrant is executed, I will be
put to great hardship and irreparable loss."
Emphasis supplied by me
14. Upon a careful reading of the above-extracted
paragraphs of the affidavit, it becomes evident that the
objector is primarily seeking adjudication of his alleged
rights flowing from an agreement to sell. In this context, it
is also necessary to refer to Clause 13 of the said
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agreement, which in the opinion of this Court, is decisive in
resolving the controversy between the parties. Clause 13
directly impacts the objector's claimed right to seek
adjudication in an execution proceeding arising out of a
decree for ejectment. The said clause is extracted below for
ready reference:
"13. The Vendor shall pay up to date taxes and
levies and all payments that are incidental to
the Vendor's ownership to the Schedule-B-
Property. The Vendor shall handover the
original documents of the Schedule-B-Property
and the copies of the Schedule-A-property to
the Purchaser at the time of execution of the
Sale deed in favour of the Purchaser or his
nominee/s or assign in term thereof, or earlier
as may be mutually agreed by the Vendor, and
Purchaser in that regard. The Physical
possession of the Schedule-B-property will be
delivered at the time of execution and
registration of the absolute sale deed in favour
of the Purchaser or his nominee or on payment
of the full payment. The Vendor hereby
convent that the original documents related to
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the Schedule-A-property are handed over to
the Association."
Emphasis supplied by me
15. A plain reading of Clause 13 of the agreement to
sell makes it abundantly clear that the objector was never
placed in possession of the property pursuant to the said
agreement. The clause specifically states that physical
possession of the Schedule-B property would be handed
over at the time of execution and registration of the
absolute sale deed or upon full payment of the
consideration. There is no assertion or proof of either event
having taken place. Therefore, the objector's claim to
possession based on the agreement to sell is
unsubstantiated and untenable. What further weakens the
objector's case is the complete shift in his stand before this
Court. Having initially claimed rights as an agreement
holder, the objector has now taken a diametrically opposite
position by asserting leasehold rights, without any
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supporting pleadings or documents. Such an attempt to
alter the foundational basis of the claim is impermissible
and clearly falls outside the scope of an application under
Order XXI Rule 97 CPC.
16. Even assuming, arguendo, that the objector was
inducted into possession as a tenant, there are absolutely
no pleadings or materials on record to support this version.
The objector's father, the original judgment debtor, was
inducted into possession under a registered lease deed
dated 01.06.2019 for a fixed period of three years. The
objector has not placed any independent document
evidencing a separate tenancy in his favour. On the
contrary, the entire appeal memo proceeds on the footing
that the objector is asserting rights through an agreement
to sell. The plea that he is a tenant since 2018 has been
raised for the first time before this Court and is clearly an
afterthought. It is also contrary to Clause 13 of the
agreement and stands in stark contradiction to his own
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pleadings. Hence, this stand deserves to be outrightly
rejected.
17. In light of the above facts, what now falls for
consideration is whether the objector could have validly
invoked the jurisdiction of the Executing Court by filing an
application under Order XXI Rule 97 CPC. The answer to
this question is a resounding 'No'. The settled position of
law is that for an application under Order XXI Rule 97 of
CPC to be entertained and taken to trial, the objector must
assert an independent, legally recognizable right to
possession either through ownership, leasehold, or any
lawful title superior to or independent of the decree-holder.
18. The Supreme Court in Brahmdeo Chaudhary
vs. Rishikesh Prasad Jaiswal1, has authoritatively held
that when a third party in possession raises an objection to
the execution of a decree, the Executing Court is duty-
bound to adjudicate upon the rival claims in terms of Rules
1
(1997) 3 SCC 694
20
101 and 103 of Order XXI of CPC, provided the claim is
based on a bona fide and independent title. Similarly,
in Silverline Forum Pvt. Ltd. vs. Rajiv Trust & Anr.2,
the Apex Court reiterated that if the resistance is made by a
person in possession claiming independent rights, the
Executing Court must decide such rights after conducting a
full-fledged enquiry. However, the Court also emphasized
that frivolous or collusive objections, or objections raised
without pleadings or legal foundation, do not warrant such
enquiry.
19. In the present case, the objector is admittedly
claiming through the decree-holder under an agreement to
sell and has not shown any independent or superior title to
the property. Moreover, Clause 13 of the agreement
completely negates the claim of possession. The
subsequent plea of tenancy is not supported by any
document and stands wholly contradicted by the record.
2
(1998) 3 SCC 723
21
The execution petition arises from a decree for ejectment,
and the objector, being the son of the judgment debtor,
cannot be permitted to take inconsistent and conflicting
stands merely to delay the process of law. This Court is
therefore of the firm opinion that the objector has no locus
to resist the decree under Order XXI Rule 97 CPC. His
remedy, if any, lies in instituting a separate suit for
enforcement of contractual rights under the agreement to
sell, in accordance with law.
20. Once the objector admits that his rights emanate
through the decree-holder and arise out of a contractual
obligation embodied in the agreement to sell, the proper
legal course is to seek enforcement of that contract before
a civil Court. Such a claim does not clothe the objector with
the right to obstruct the execution of a lawful ejectment
decree. The Supreme Court in Ashan Devi and another
vs. Phulwasi Devi and others3, observed that possession
3
(2003) 12 SCC 219
22
by a licensee or someone holding permissive possession
cannot constitute a valid objection under Order XXI Rule 97
CPC. The claim must be independent, lawful, and supported
by cogent evidence, none of which is forthcoming in the
present case.
21. This Court cannot overlook the collusive and
calculated conduct of the objector and his father, the
original judgment debtor in their continuing effort to
unlawfully retain possession of the suit property despite the
decree for ejectment having attained finality. The records
clearly disclose that the father was inducted as a tenant
under a registered lease deed, which had a fixed term
commencing from 01.06.2019. The objector, who is none
other than the son of the judgment debtor, is now
attempting to obstruct the execution of the decree by
alternately claiming rights under an unregistered agreement
to sell and, inconsistently, as a tenant in his own right.
Such contradictory stands, devoid of any credible
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documentary support, clearly reveal a mala fide intent to
frustrate the lawful enforcement of the decree. The strategy
adopted by the objector is nothing but an abuse of the
process of law, aimed at perpetuating unauthorized
occupation and delaying justice.
22. In these circumstances, the Executing Court was
fully justified in summarily rejecting the application under
Order XXI Rule 97 of CPC. The scope of an obstruction
proceeding is not meant to entertain frivolous and collusive
claims, particularly when the objector fails to assert any
independent or superior legal right to possession.
Permitting such obstruction applications to proceed to trial
without a foundational basis would defeat the very purpose
of execution proceedings and embolden judgment debtor to
resort to dilatory tactics. As rightly observed by the
Supreme Court in Periyammal( dead) through LRs &
Ors. v. V. Rajamani & Anr.4, the execution of a decree is
4
2025 SCC OnLine SC 507
24
not a mere formality but an integral part of the adjudicatory
process, and undue delay in execution undermines the rule
of law.
23. The enforcement of a decree for ejectment must
be swift, effective, and insulated from frivolous
interferences. Courts must remain vigilant to ensure that
judgment-debtors and their associates do not squat over
the property with impunity under the guise of legal
remedies. Leniency towards such conduct would not only
reward dishonesty but also erode the sanctity of judicial
determinations. Therefore, this Court affirms that the
Executing Court acted well within its jurisdiction and
discretion in summarily rejecting the obstruction application
and proceeding to enforce the decree in accordance with
law.
24. In view of the admitted and undisputed facts,
the Executing Court was justified in summarily rejecting the
25
application filed under Order XXI Rule 97 of CPC. This is not
a case that warranted relegation of the parties to trial. A
full-fledged enquiry under Order XXI Rules 101 and 103 of
CPC is warranted only where there are conflicting claims of
independent title supported by pleadings and documents. In
the absence of such material, summary dismissal of the
obstruction application was not only appropriate but
necessary to prevent abuse of process. Accordingly, point
No.(ii) is answered in the affirmative and point No.(iii) is
answered in the Negative.
Finding on Point No. (iv):
25. In light of the detailed findings recorded on
Points 1 to 3, this Court is of the considered view that the
appeals preferred by the objector is wholly devoid of merit
and do not warrant any interference. The obstructer's
attempt to resist the decree under the garb of either an
agreement to sell or leasehold rights is untenable and
collusive in nature. The judgments cited by the learned
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Senior Counsel appearing for the objector are
distinguishable on facts and do not apply to the present
cases.
26. Hence, this Court proceeds to pass the following:
ORDER
The appeals are dismissed.
Sd/-
(SACHIN SHANKAR MAGADUM) JUDGE ALB