Karnataka High Court
S P R Group (Holding) Pvt Ltd vs Haji Quder Since Dead By His Lrs on 5 April, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A NO.638 OF 2013(SP)
BETWEEN:
S.P.R GROUP (HOLDING) PVT LTD
REP BY M THIMMEGOWDA
S/O LATE MUTHEGOWDA
OFF: MANCHANAYAKANAHALLI BIDADI HOBLI
RAMANAGARA TALUK
BENGALURU RURAL DISTRICT
...APPELLANT
(BY SRI.UDAY HOLLA, SR.COUNSEL FOR
SRI.VIVEK HOLLA, ADVOCATE)
AND:
1. HAJI QUDER
SINCE DEAD BY HIS LRS
A). A MAJID QUADER
S/O LATE HAJI QUADER
AGED ABOUT 55 YEARS
B). A AZEEZ QUADER
S/O LATE HAJI QUADER
AGED ABOUT 52 YEARS
C). SMT ZAINUB QUADER
W/O LATE HAJI QUADER
AGED ABOUT 75 YEARS
2
ALL ARE R/AT G7, SILVER OAK BUILDING,
GARDEN APARTMENTS,
VITTAL MALLYA ROAD,
BENGALURU-01
2. SRI YERRAPPA
MAJOR
S/O RAMAIAH
R/AT MANASA GARMENTS, NO 52/1
17TH CROSS, NEAR CANARA BANK
M C LAYOUT, BENGALURU-40
3. B RAMESH
MAJOR
S/O BHAJANLAL, MAJOR
4. ANJURANI D/O BHAJANLAL
AGED ABOUT 47 YEARS
NO.3 & 4 ARE R/AT NO 40/4
KUMARPARK WEST, 5TH MAIN
BENGALURU 20
5. SMT BHARATHI
W/O MADHOO
AGED ABOUT 37 YEARS
6. SMT BHAVANA
W/O RAMESH
AGED ABOUT 34 YEARS
NO.5 & 6 ARE R/AT NO 16, CRESCENT ROAD,
HIGH GROUNDS, BENGALURU 01
...RESPONDENTS
(BY SRI.ADITYA SONDHI, SR.COUNSEL FOR SRI.SYED
KHAMRUDDIN, ADVOCATE FOR C/R1(B);
SRI.P.CHINNAPPA BY INDUS LAW, ADVOCATE FOR R1(A&C);
3
NOTICE NOT ORDERED IN R/O R2 TO R6)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 20.3.12 PASSED IN R.A.NO.55/2012
ON THE FILE OF DISTRICT AND SESSIONS JUDGE, RAMANAGARA,
DISMISSED THE APPEAL AND CONFIRMING THE JUDGEMENT AND
DECREE DTD 12.7.12 PASSED IN EXECUTION PETITION
NO.505/2003 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE &
CJM, RAMANAGARA, DISMISSING THE OBJECTIONS/ WRITTEN
STATEMENT FILED BY THE OBSTRUCTER/OBSTRUCTER/JRD.NO.6
U/ORDER XXI RULE 98 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by third party obstructer questioning the judgment and decree dated 20.3.2012 passed in R.A.No.55/2012 by the learned District and Sessions Judge, Ramanagara, confirming the order dated 12.07.2012 passed by the Senior Civil Judge and C.J.M., Ramanagara in Execution No.505/2003 on an application filed under Order 21 Rule 98 of CPC.
2. The facts leading to the case are as under:
The suit property was originally owned by one Yerrappa who executed an agreement to sale on 12.1.1983 in favour of 4 one Haji Quader. The agreement holder i.e. Haji Quader on account of breach on the part of Yerrappa in performing his part of the contract was compelled to file the suit for specific performance of contract in O.S.38/1983 against the original owner. The owner namely Yerrappa during pendency of the suit alienated the suit schedule property under registered sale deed dated 24.2.1984 in favour of respondents 3 to 6/JDRs 2 to 5. The Court having examined the rival contentions decreed the suit by judgment and decree dated 10.6.1988 against judgment debtors 1 to 5.
2(a) The original plaintiff Haji Quader filed execution petition in Ex.P.12/1988. The present appellant who is arrayed as judgment debtor No.6 contended that he has purchased the suit schedule property from respondents- judgments debtors 2 to 5 under registered sale deed dated 28.10.1991.
2(b) The present appellant/Judgment debtor No.6 has filed an obstruction application under Order 21 Rule 98 of CPC 5 before the executing Court. The appellant claimed that he was a bonafide purchaser for value without notice and claims that he has improved the property by investing huge amount and is running a distillery by employing several people and therefore, specifically contended that the present decree is not at all executable.
2(c) To substantiate his claim the appellant/obstructer/judgment debtor No.6 led ocular
evidence and has examined himself as D.W.2 and produced documentary evidence vide Exs.D1 to D48. The decree-holder has also led ocular evidence and has produced six documents which are marked as Exs.P1 to P6.
2(d) The Executing Court having examining the rival contentions has answered point No.2 in affirmative and has recorded a finding that the transaction between respondents/judgments debtors 2 to 5 and present appellant/JDR 6 is hit by Section 52 of Transfer of Property Act 6 and has proceeded to reject the obstruction application filed under Order 21 Rule 98 of CPC.
2(e) Feeling aggrieved by the order of the Executing Court, the present appellant preferred an appeal before the first appellate Court. The first Appellate Court having assessed the material on record has concurred with the findings of the executing Court and has also recorded a finding that the transaction between the appellant herein and respondents/judgment debtors 3 to 6 is hit by Section 52 of Transfer of Property Act. The contention of the appellant herein that the execution petition is barred by time was also negatived by the appellate Court.
It is against these concurrent judgments, the appellant/Obstructer is before this Court.
3. The learned Senior Counsel appearing for appellant would vehemently argue and contend before this Court that original owner Yerrappa after due deliberations and negotiations sold the suit schedule property in favour of 7 respondents 3 to 6/judgment debtors 2 to 5, which was well within the knowledge of Haji Quader and the said Haji Quader(agreement holder) under whom the present decree holder is asserting right never objected for sale and therefore, would contend that these aspects are not dealt by the Executing Court while considering the claim of the appellant/obstructer herein. He would also strenuously argue and contend that the present execution petition is barred by limitation and is also not maintainable as earlier execution petitions were withdrawn without seeking leave of the Court.
4. Learned Senior Counsel, to buttress his arguments on limitation, would bring to the notice of this Court that the decree holder withdrew E.P.8/1993 without leave of the Court on 11.12.1995. The decree holders are intending to execute the decree for specific performance passed in O.S.No.38/1983. Therefore, he would contend that in terms of Article 136 of Limitation Act, the present execution petition is not at all maintainable and the same is barred by limitation. 8
4(a) To buttress his arguments he has placed reliance the following judgments of the Apex Court:
(i) 1997(7) SCC 556 [P.K. Ramachandran .vs. State of Kerala and another;
(ii) 2006(13) SCC 470 [Sankar Dastidar .vs. Banjula Dastidar(Smt) and another; and
(iii) (1979) 2 SCC 572 [Mohamed Hasnuddin .vs. State of Maharashtra] 4(b) Placing reliance on the above said judgments, the learned Senior Counsel would contend that the limitation must be applied with all its vigor and Courts have no discretion to extend limitation on the ground of equity. He would further point out that duty is cast on the Court to reject a claim which are barred by limitation even in absence of plea. Placing reliance on judgment rendered in the case of Union of India .vs. Karnatala Electricity Board1 he would further contend that limitation is neither technicality nor unjust and duty is 1 ILR 1987 Kar 2552 9 cast on the Court to enforce it as long and dormant claims often lead to cruelty than justice.
5. While questioning the conduct of the decree-holder he would point out that the decree holder is guilty of filing successive execution petitions and the same are withdrawn by the decree holder at different point of time without seeking leave of the Court and therefore, he would contend that withdrawal of execution petitions would not extend limitation, which is twelve years from the date of passing of a decree. Referring to the several withdrawals, he would strenuously argue and contend that the decree holder has no unfettered right to unilaterally withdraw the execution cases, more particularly when there are alienations pending execution. To buttress his arguments, he has placed reliance on Full Bench judgment rendered by the Patna High Court in the case of Kishundutt .vs. Gulabchand2. He has also placed reliance on the judgment rendered by a Co-ordinate Bench of this 2 AIR 1948 PATNA 113 10 Court in the case of Krishna Reddy, since deceased by his L.Rs .vs. The Special Additional LAO, Bangalore Development Authority and another3
6. Placing reliance on the grounds urged in the second appeal and also the judgments cited supra, learned Senior Counsel would conclude his arguments by contending that the present appellants valuable rights are not examined by the executing Court and the appellate Court. He would contend that the present appellant/obstructer has independent right in the suit schedule property and when there is an obstruction by a person other than the judgment debtor having absolute right over the suit schedule property, there is a mandatory procedure contemplated under the Code to determine the right of the obstructer and therefore, mandatory procedures cannot be circumvented.
7. On these set of grounds, the learned Senior Counsel would contend that the concurrent judgments 3 ILR 2013 KAR 5352 11 rendered by the Courts below are not at all sustainable and would warrant interference at the hands of this Court as substantial question of law would arise in the light of the principles laid down by the Apex Court and Co-ordinate bench of this Court in the judgments cited supra.
8. Learned Senior Counsel appearing for the decree holder repelling the contentions canvassed by the learned Senior Counsel appearing for the appellant/obstructer would however contend that the grounds raised by the appellant- obstructer in regard to limitation is put to rest by this Court in CRP.No.274/2009. Taking this Court through the said judgment, the learned Senior Counsel would contend that the execution petition came to be dismissed on the ground of limitation and the decree holder was compelled to approach this Court in CRP.No.274/2009. He would point out to this Court that the decree holder placed on record the exparte interim injunctions granted against the decree holder from executing the decree. This Court having taken judicial note of 12 grant of interim injunctions was of the view that decree holder was prevented from filing the execution petition and therefore, allowed the revision and the execution petition was restored on file and therefore, would contend that Article 136 of the Limitation Act has no application to the present case on hand.
9. Placing reliance on the judgment of the Apex Court rendered in Balbir Singh .vs. Ashok Kumar4 he would contend that merely because execution petition was withdrawn without liberty would not in itself attract the provisions of Section 11 of CPC.
The learned Senior Counsel further placing reliance on the judgment of the Apex Court rendered in the case of 5 Silverline Forum Pvt. Ltd. .vs. Rajiv Trust and another and the subsequent judgment rendered by the Apex Court in the case of Menka Gupta Vs. Umashree Devi6 would contend that the present appellant/obstructer is a transferee 4 2014 SCC OnLine HP 2412 5 (1998) 3 SCC 723 6 2019(7) SC J 306= 2019 SCC OnLine Senior Counsel 1671 13 pendente lite and therefore, has no right to obstruct the execution of the decree. On these set of grounds, he would contend that no substantial question of law arise in the present case on hand. Therefore, the grounds urged in the appeal memo would not warrant any interference attracting the ingredients of Section 100 of CPC and therefore, seeks for dismissal of the appeal.
10. Heard the learned Senior Counsel appearing for appellant and learned Senior Counsel appearing for respondents and perused the judgments under challenge. I have also given my anxious consideration to the judgments cited by both the parties.
11. The preliminary contention raised by the appellant/obstructer that the execution petition is not maintainable on the ground of limitation cannot be acceded to as rightly pointed by the learned Senior Counsel appearing for respondent-decree holder. The said question is put to rest by 14 this Court in CRP.No.274/2009. The decree-holder feeling aggrieved by the order of the executing Court in dismissing the execution petition on the ground of limitation was before this Court in the above said civil revision petition. The Co- ordinate Bench of this Court while examining the right of decree-holder in terms of Section 15 of the Limitation Act found from the materials that on account of temporary injunction granted in O.S.No.80/1994, the present respondents-decree holders were injuncted from executing the decree for specific performance. Therefore, this Court was of the view that the petitioners therein was prevented from filing execution petition on the ground of ex parte interim order operating against them, the period during which the temporary injunction was in force was required to be excluded while computing the period of limitation. On these set of reasoning has allowed the civil revision petition and the execution petition was restored on file. The present appellant was arrayed as respondent No.6 in the above said CRP. 15 Therefore, the order passed by this Court in CRP.No.274/2009 binds the appellant and he is estopped from re-agitating the question of limitation in the present execution petition.
12. The second contention raised by the appellant/obstructer in the present case on hand is that once an obstruction is offered by a stranger to the decree, the remedy available to the decree-holder against such an obstruction is only to have recourse to Order 21 Rule 97 of CPC and he cannot bypass such an obstruction and insist for warrant for possession. The appellant has also contended that since his possession is based on a title, he is entitled to get his claim adjudicated even prior to losing possession to the decree-holder. The obstructer also contends before this Court that he is not bound by the decree as he has an independent right, title and interest and therefore, he cannot be dispossessed and therefore, the contention is raised that the obstructer is entitled to seek adjudication under Rule 101 of CPC. This contention cannot be entertained as the 16 appellant/obstructer has not placed any material on record to demonstrate that he has an independent title than that of judgment debtor. The material on record clearly indicates that the present appellant is a purchaser pendete lite. The original agreement holder filed a suit for specific performance of contract based on an agreement dated 12.1.1983 in O.S.No.38/1983. Respondents 3 to 6 purchased the suit property from the original owner Yeerappa under registered sale deed dated 24.02.1984. Respondents 3 to 6 sold the suit schedule property in favour of the appellant under four different sale deeds dated 28.10.1991. All these significant details clearly indicate that the present appellant is not asserting any independent title but is claiming under the judgment debtor. It is a trite law that a person bound by the decree includes a person claiming through the judgment debtor. The principles laid down by the Apex Court in the case of Usha Sinha (supra) are squarely applicable to the present case on hand. While examining the scope of Rule 97, 98 and 17 102, the Apex Court was of the view that the third party obstructer has to assert his independent right and the Court while examining the said application has to adhere to the principles laid down under the provisions of Order 21 Rule 102 of CPC. The Apex Court was of the view that the scope and objection of Order 21 Rule 102 is based on justice, equity and good conscience. The Apex Court has also held that transferee from a judgment debtor is presumed to be aware of the proceedings before a Court of law and therefore, would not be entitled for any protection and the doctrine of lis pendence is applicable to such a transferee.
13. Therefore, if all these significant details are taken into consideration, this Court is of the view that the appellant who has no independent right to the property cannot resist, obstruct or object the execution of the decree and therefore, both the Courts were justified in recording a categorical finding that appellant is not entitled to get their claim adjudicated.
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14. For the foregoing reasons, the appeal is devoid of merits. No substantial question of law arises and accordingly, the appeal is dismissed.
Sd/-
JUDGE *alb/-