Karnataka High Court
Smt. Chowdamma vs Mrs. Gracy Kurian on 19 April, 2023
Author: P.S. Dinesh Kumar
Bench: P.S. Dinesh Kumar
RFA No. 352/2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19 TH DAY OF APRIL, 2023
PRESENT
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
RFA NO. 352 OF 2023 (POS)
BETWEEN:
1. SMT. CHOWDAMMA
W/O LATE SRIRAMAPPA
AGED ABOUT 65 YEARS
2. SRI. NAGARAJ
S/O LATE SRIRAMAPPA
AGED ABOUT 46 YEARS
THE APPELLANTS NO. 1 & 2 ARE
RESIDING AT SY. NO.74/1
BYRASANDRA DAKHALE
G.M. PALYA
NEW THIPPASANDRA POST
BENGALURU - 560 075. ....APPELLANTS
(BY SHRI. C.M. NAGABHUSHAN, ADVOCATE FOR
SHRI. R. BADRINATH, ADVOCATE)
AND:
1. MRS. GRACY KURIAN
W/O LATE DR. KURIAN CHANDY
D/O LATE C.C. MATHEW
AGED ABOUT 73 YEARS
RESIDING AT NO.3
VISHNU AVENUE
VINAYAGAM STREET
VIRUGAMBAKKAM
CHENNAI - 600 092
RFA No. 352/2023
2
REPRESENTED BY GPA HOLDER
MR. VINOO CHERIAN
S/O LATE M.P. CHERIAN
AGED ABOUT 53 YEARS
RESIDING AT NO.3
VISHNU AVENUE
VINAYAGAM STREET
VIRUGAMBAKKAM
CHENNAI - 600 092.
2. SRI. KRISHNAPPA
S/O LATE MUNIDEVAPPA
RESIDING AT NO. 484
NEW NO. 822/484
GARAKAMANTHANAPALYA
EXTENSION, (G.M. PALYA)
BYRASANDRA DHAKLE
K.R. PURAM HOBLI
BANGALORE EAST TALUK-560 075. ...RESPONDENTS
(BY SHRI. A.P. NILE, ADVOCATE FOR R-1)
V/O DTD 24/02/2023, NOTICE TO R-2
IS DISPENSED WITH
THIS RFA IS FILED UNDER ORDER XLI RULE 1 R/W SEC.96
OF CPC, AGAINST THE ORDER DATED 25.01.2023 PASSED ON I.A.
NO.5 IN EX.NO.2015/2017 ON THE FILE OF THE I ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE I.A.
NO.5 FILED UNDER ORDER 21 RULE 97 R/W SEC.151 OF CPC.
THIS RFA, HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 24.02.2023 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, P.S. DINESH KUMAR, J., PRONOUNCED
THE FOLLOWING:-
RFA No. 352/2023
3
JUDGMENT
This appeal under Section 96 of CPC is directed against order dated January 25, 2023 passed by the learned I Addl. City Civil and Sessions Judge, Bengaluru, dismissing appellants' application I.A. No.5 filed under Order 21 Rule 97 read with Section 151 CPC.
2. Heard Shri. C.M. Nagabhushan, learned Advocate for appellants and Shri. A.P. Nile, learned Advocate for respondent No.1.
3. Briefly stated the facts of the case are, first respondent- Mrs. Gracy Kurian filed a suit1 for a declaration that she is the absolute owner of the suit schedule property and for a direction against the defendant to vacate and handover vacant possession of the said property. Suit has been decreed vide judgment and decree dated February 27, 2017. Thereafter, she filed 1 O.S. No.995/2014 on the file of I Addl. City Civil Judge, Bengaluru RFA No. 352/2023 4 the instant execution petition 2. Appellants filed I.A. No.5 to protect their possession. By the impugned order, said application has been dismissed. Hence, this appeal.
4. Shri. Nagabhushana, for the appellants submitted that:
appellants are residing in the suit schedule property in their own right as the owners of the property;
in the panchanama drawn on 15.09.2021, it is clearly mentioned that second appellant and his mother Chikkavenkatamma had stated that they are the owners of the suit schedule property. Therefore, without proper enquiry and opportunity to the appellants to place oral and documentary evidence, the Executing Court has dismissed the application.
The course adopted by the Execution Court is contrary to law laid down in BDA Vs. N. Nanjappa and Another3.2 Ex. No. 2015/2017 3
2021 SCC Online SC 1179 RFA No. 352/2023 5
5. In substance, Shri. Nagabhushan argued that unless the rights of the appellants are determined by permitting them to place oral and documentary evidence, their I.A. No.5 could not have been dismissed.
6. Opposing the appeal, Shri. Nile submitted that first respondent has purchased the property under a registered Sale deed4. She had to travel to London and when she was not in the Country, vendor's brother Krishnappa trespassed into the suit property. First respondent initiated criminal action against Krishnappa. She also filed a suit5 for declaration and possession and the same has been decreed on February 27, 2017.
7. Shri. Nile argued that applicant had filed I.A. No.3 in the Execution proceedings on April 20, 2018. Hence, she was aware of the said proceedings. After filing the said application, appellants' mother Smt. Chikkavenkatamma filed an eviction petition against 4 Dated June 18, 1992 5 O.S. No. 995/2014 RFA No. 352/2023 6 two persons namely Shri. Muruga and Smt. Jyothi. Muruga remained ex parte and on the strength of judgment in his case6, appellants and their mother Chikkavenkatamma took possession of ground floor of the premises. The eviction petition filed against Smt. Jyothi7 stood dismissed.
8. In substance, Shri. Nile contended that appellants and their mother Chikkavenkatamma sought to implead themselves in the Execution proceedings by filing I.A. No.3 in 2018. Simultaneously, they filed eviction petitions against two persons. Petition against Muruga stood decreed and petition against Jyothi stood dismissed. The I.A. No.3 for impleadment stood dismissed on March 6, 2021. Appellants did not take any further action and it attained finality and therefore, there is no legal infirmity in the impugned order. 6 HRC 1543/2018 7 HRC 517/2019 RFA No. 352/2023 7
9. We have carefully considered rival contentions and perused the records.
10. Undisputed facts of the case are, the suit8 filed by first respondent Gracy Kurian seeking declaration and possession has been decreed declaring that her father was the absolute owner of the suit property and she was entitled to the exclusive possession of the same; and directing the defendant to vacate and handover vacant possession of the suit property. The instant execution proceeding has been initiated to execute the said decree. It is recorded in para 15 of the impugned order that I.A. No.3 is for impleadment. We have perused the said application. It is filed by appellants' mother Chikkavenkatamma. Time was sought to argue the application from 28.06.2018 till 16.03.2021 and thereafter, the application has been dismissed for non- prosecution.
8 O.S. No.995/2014 RFA No. 352/2023 8
11. Learned Advocate for the respondent has produced the judgment in S.C. No.1543/2018 (Smt. Chikkavenkatamma Vs. Shri. Muruga). It was filed on October 29, 2018. The respondent therein has remained ex parte. Suit has been decreed in less than three months on January 23, 2019.
12. He has also produced the judgment in S.C. No.517/2019 (Chikkavenkatamma Vs. Smt. Jothi). This suit is also filed by Chikkavenkatamma against one Jothi. The contentions urged by the occupant, Smt. Jyothi have been recorded in para 3 of the judgment. She has pleaded that one Byrappa had sold the property in favour of Smt. Acchamma Mathew. She was staying as a licencee under Acchamma's daughter Gracy Kurian. It is recorded in para 15 of judgment that the plaintiff had failed to furnish correct boundaries, nor had produced any document to prove that such property ever existed within the given boundaries. The pleadings were silent about the date of construction, date of induction of tenant and there RFA No. 352/2023 9 was no rental agreement between the parties. It is further recorded that not an iota of evidence was produced with regard to title. No khatha extract, no tax paid receipts were produced.
13. Analysis of the facts recorded hereinabove, discloses that on 20.04.2018, Chikkavenkatamma filed I.A. No.3 to implead herself in the Execution proceedings. She filed an ejectment suit against one Muruga and it was decreed ex parte on 23.01.2019. She dragged Execution proceedings from 28.06.2018 to 16.03.2021 by seeking time to argue I.A. No.3. The said application stood dismissed for non-prosecution. The panchanama was conducted on 15.09.2021. Though it is mentioned in the panchanama that Chikkavenkatamma and Nagaraj (second appellant) were present, Chikkavenkatamma did not choose to take any further action on her impleadment application. On the other hand, her daughter and son have filed the instant application under Order XXI Rule 97 CPC on 20.11.2021. It is stated in the affidavit sworn by RFA No. 352/2023 10 the first appellant that she, her son and her mother and others are the heirs of late Ramakrishnappa who were owners of property bearing Sy. No.74/1 measuring 3 acres 5 guntas; that they had constructed several residential houses in Sy. No.74/1 and let out some houses to the tenants. It is relevant to note that in para 8 of her Affidavit, first appellant has stated that one Muruga was their tenant, an ejectment suit was filed against him and the same was decreed. First appellant Chowdamma has stated that property in which Muruga was residing belonged to 'them'. It is relevant to note that the eviction proceedings against Jyothi is not referred to in the Affidavit. Both the eviction suits were filed by Chikkavenkatamma.
14. Thus, it is a clear case in which appellants' mother and appellants have approached the Executing Court in 2018 and dragged the proceedings till 2021. RFA No. 352/2023 11
15. Shri. Nagabhushana's main argument is that the objectors have not been given reasonable opportunity to place their evidence on record and unless their title is established, the application could not have been dismissed. He has placed reliance on para 4 and 18 in BDA Vs. Nanjappa9. In the said case, one Nanjappa had filed a suit for ejectment against respondent No.2 therein, without making BDA as a party. BDA had independently filed a suit before the City Civil Court for declaration that the lease agreement between Nanjappa and his lessee was null and void. BDA also filed two applications under Order XXI Rule 97 in the Execution proceedings initiated by Nanjappa against the tenant for impleadment and to defer the Execution proceedings till disposal of suit filed by BDA. The said applications were dismissed by the Civil Court and the writ petition filed thereon, was also dismissed by this Court. BDA challenged the same before the Apex Court and the Apex Court in para 15 of the judgment has held that all questions including questions 9 2021 SCC Online SC 1179 RFA No. 352/2023 12 relating to right, title and interest in the property arising between the parties shall have to be determined by the Court dealing with the application.
16. The application under Order XXI Rule 97 reads as follows:
"IN THE COURT OF CITY CIVIL JUDGE AT BANGALORE EX. No.2015/2017 Between:
Mrs. Gracy Kurian Decree Holder
And:
Mr. Krishnappa Judgment Debtors
Objectors/Obstructers
1. SMT. CHOWDAMMA
W/o late Sriramappa
Aged about 65 years
2. SRI. NAGARAJ
Son of late Sriramappa
Aged about 46 years
Both are R/at Sy. No.74/1
Byrasandra Dakhale
G.M.Palya
New Thippasandra Post
Bengaluru-560075.
RFA No. 352/2023
13
UNDER ORDER 21 RULE 97 READ WITH SECTION 151 CODE OF CIVIL PROCEDURE:-
The applicants/Objectors above named prays that for the reason contained in the accompanying affidavit that this Hon'ble court be pleased to object the execution of the decree in O.S. No.995/2014 dated 27-02-2014 and further protract possession of the objectors and to resist the claim of the decree holder in the above case in the interest of justice.
Bangalore Date:20.11.2021 Advocate for applicants/Objectors"
17. The relevant portion of the finding recorded in the impugned order reads as follows:
"15. Further, the order sheet discloses that, the present applicant filed the I.A.No.3 to implead as a necessary party on 20.04.2018 stating that, she is the absolute owner of the suit property and the Ameena came near the property, she questioned on what ground you came near the property as she is residing in the said property, the Court official narrated regarding execution of the warrant and to say regarding her case, she had filed I.A.No.3. The ordersheet discloses that after filing the application she has not come forward to appear before this Court to submit her arguments from 28.06.2018 till 16.03.2021, she has not approached this Court to submit her say. Thereafter, this Court rejected the application for non- prosecution. After that, to overcome all these facts, she RFA No. 352/2023 14 filed HRC proceedings in S.C.No.1543/2018 before the Court of Small Causes without impleading the present DHR in that case and the decree. This shows that, to avoid the execution proceedings filed by the DHR, she filed this petition. If really she is the real owner of the suit property, she could have contested before the Court of Small Causes by impleading the DHR. Intentionally she has not included the DHR. Since during the pendency of the execution petition, she filed this suit and the decree was passed on 23.01.2019 i.e., during the pendency of the execution petition. The Act of the third party discloses that, she got this decree to avoid the execution proceedings as discussed above. Hence, there is no substance in the application. "
18. Appellants' mother Chikkavenkatamma abandoned her claim after dismissal of her application for impleadment. She abandoned her claim against Jothi after dismissal of eviction petition. In the Affidavit in support of the instant application under Order XXI Rule 97 of CPC, filed by son and daughter of Chikkavenkatamma, only the eviction case against Muruga has been referred.
RFA No. 352/202315
19. Though it is settled that all questions relating to title will have to be decided by the Executing Court, in view of the stark facts before the Executing Court and the conduct of the parties, the Trial Court, in our considered opinion has rightly dismissed the application.
20. In the light of above discussion, we find no legal infirmity in the impugned order. Resultantly, this appeal must fail and it is accordingly dismissed.
No costs.
Sd/-
JUDGE Sd/-
JUDGE SPS