Karnataka High Court
Mehaboob S./O. Rajasab vs P.Thimmappa S/O. P Hanamanthappa on 28 March, 2019
Author: Krishna S Dixit
Bench: Krishna S. Dixit
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF MARCH, 2019
BEFORE
THE HON'BLE MR.JUSTICE KRISHNA S. DIXIT
WRIT PETITION NO.102694/2019 (GM-CPC)
BETWEEN
MEHABOOB S/O. RAJASAB
AGE : 58 YEARS,
R/O. D.NO.38, 39, WARD NO.XII,
CHINNA DURGAMMA TEMPLE STREET,
ANANTHAPUR ROAD, BALLARI-583101
...PETITIONER
(BY SRI. MOHAMMAD ABRAR AND
SRI. GODE NAGARAJ, ADVOCATE)
AND:
1. P. THIMMAPPA S/O. P. HANAMANTHAPPA,
AGE 48 YEARS, R/O. VISHAL NAGAR,
ANANTHAPUR ROAD, BALLARI-583101
MEHBOOB SINCE DEAD BY HIS L.RS.
2. SHARIEFA BEE W/O. MEHABOOB,
AGE 56 YEARS,
3. GOUSIA D/O. LATE MEHABOOB,
AGE 37 YEARS,
2
4. SHAMEEM D/O. LATE MEHABOOB,
AGE 35 YEARS,
5. GAFOOR S/O. LATE MEHABOOB,
AGE 34 YEARS,
6. VALI S/O. LATE MEHABOOB
AGE 32 YEARS,
7. SHANU D/O. LATE MEHABOOB,
AGE 21 YEARS,
8. RIZZU D/O. LATE MEHABOOB,
AGE 29 YEARS,
9. SADAM S/O. LATE. MEHABOOB
AGE 15 YEARS,
RESPONDENTS NO.2 TO 9 ARE
R/O. D.NO.37A, W.NO.V, TANK BUND ROAD,
BALLARI-583101.
GOUSE SINCE DEAD BY HIS L.RS.
10. SHALIA BANU W/O. GOUSE,
AGE 58 YEARS,
11. NASEEM D/O. LATE GOUSE
AGE 34 YEARS,
12. VALI BASHA S/O. LATE GOUSE,
AGE 37 YEARS,
13. RIZVANA D/O. LATE GOUSE,
AGE 32 YEARS,
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14. FARYA D/O. LATE GOUSE,
AGE 29 YEARS,
RESPONDENTS NO.10 TO 14 ARE
R/O. D.NO.37A, W.NO.V, TANK BUND ROAD,.
BALLARI-583101.
...RESPONDENTS
(SRI. BADRI VISHAL, ADV.
FOR HARSH DESAI, ADV. FOR R1;
NOTICE TO R2 TO R9 RETURNED AS 'REFUSED';
R10, R11, R13 & R14 - ACK. NOT YET RECEIVED;
R-12 DECEASED)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING
TO QUASH THE ORDERS REGARDING THE
MAINTAINABILITY OF THE EXECUTION APPEAL I.E.
DATED 13.12.2018 PASSED BY THE COURT II ADDL.
DISTRICT AND SESSIONS JUDGE, BALLARI IN
E.A.NO.1/2018 AND SAME AT ANNEXURE-V MAY BE
DISMISSED.
THIS PETITION COMING ON FOR ORDERS
REGARDING HEARING ON INTERLOCUTORY APPLICATIONS
HAVING BEEN HEARD AND RESERVED ON 20.03.2019,
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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ORDER
Petitioner being the Decree Holder in O.S.No.79/1995 has called in question the Judgment and Order dated 13.12.2018 made by the learned II Addl. Dist. & Sessions Judge, Ballari, in Respondents Execution Appeal No.1/2018, a copy whereof is at Annexure-V, whereby he has held that the said appeal is maintainable.
2. After service of notice, the Respondents have entered appearance through their counsel who make submission resisting the writ petition.
3. Learned counsel for the Petitioner submits that, the Petitioner had filed O.S.No.79/1995 seeking a decree for specific performance of a contract to sell the suit property; the suit ended in a compromise decree dated 15.07.1999 which was put in Execution Case No.167/2000 and the executing Court has executed and 5 registered a sale deed on 15.07.2015 in respect of half share in the schedule property; the Petitioner had filed a memo seeking issuance of delivery warrant for taking possession of the same. The same was resisted by the Respondents herein by filing I.A.No.29 on the ground that the Respondents have brought the same vide registered sale deed dated 03.06.2009 from one Mr. Y. Bhaskar who had brought it from J.Dr. No.5, by a registered sale deed of 2006.
4. Learned counsel for the Petitioner further submits that, the executing Court having held the enquiry in terms of the Common Order dated 29.03.2016 passed by this Court in W.P.No.110500/2015 connected with W.P.No.101664/2016 had issued two commissions for examining the feasibility of delivering the possession of the property to the Petitioner herein. Later, on enquiry, it accepted the second Commissioner's report vide order 6 dated 12.02.2018 and directed delivery of possession of the subject property. The same having been put in challenge in Execution Appeal No.1/2018, by the Respondents herein, and that the Petitioner's application on the maintainability of the said appeal having been held in the affirmative, he is before this Court.
5. Learned counsel for the Petitioner submits that, the order passed by the executing Court does not answer the definition of decree under Section 2(2) of CPC, 1908; nor does it amount to a deemed decree under Order XXI Rule 103 inasmuch as the obstructer's application filed by the Respondent herein admittedly was under Order XXI Rule 97; in view of Rule 102, the question of Respondents filing the application under Rules 98 & 100 would not arise at all since they do not aware to the obstructer who is a transferee pendente lite. Therefore, the order made by the executing Court not being a decree or deemed decree was not 7 appealable. That being so, the impugned order holding to the contrary is liable to be set at naught.
6. Learned counsel for the contesting Respondents Mr. Bhadri Vishal per contra submits that, the issue is not as simple as sought to be made out by the Petitioner's side; the provisions of Rules 35, 97 to 101, 103 & 104 of Order XXI of CPC having thick kinship with each other have to be read and construed together as one scheme; the order made by the executing Court on the obstructer's application regardless of the provision of law mentioned, is a deemed decree and therefore, Execution Appeal is competent, regardless of its matter on merits.
7. I have heard the learned counsel for the Petitioner and the learned counsel appearing for the Respondents extensively, some of their submissions transcending the scope of the writ petition not 8 withstanding. I have perused the petition papers and the decisions cited at the Bar.
8. The facts of the case are not much in dispute:
Petitioner's suit in O.S.No.79/1995 for specific performance of agreement to sell ended in a compromise decree dated 15.07.1999 wherein it is stated ".......in case the defendants 4 & 5 failed to pay the amount as ordered, then the plaintiff is at liberty to execute the decree in respect of schedule properties against defendant Nos.4 & 5..." ; Petitioner had filed Execution Petition No.167/2000 wherein J.Dr.No.4 had filed I.A.No.24 under Order XXI Rules 1 & 2 r/w. Section 47 and Section 151 of CPC seeking permission to deposit the balance amount of decree in its full satisfaction. This was rejected with cost of Rs.1,000/- by the Executing Court on 08.01.2015 specifically observing that the decree holder is entitled for execution of sale deed from the L.Rs. of J.Dr.Nos.4 & 5.9
9. The J.Dr. No.4(a) had filed W.P.No.110500/2015 and W.P.No.101664/2016 respectively laying a challenge to the order dated 08.01.2015 on I.A.No.24 and 08.02.2016 on I.A.No.31. This Court by a common Judgment dated 29.03.2016 disposed off both the writ petitions inter alia observing that the executing Court should undertake the exercise of identifying the share of the Petitioner in the schedule property and examine the feasibility of delivering possession to him.
10. The executing Court having undertaken the aforesaid exercise executed and registered the sale deed through the Commissioner in favour of the Petitioner on 07.07.2015 in terms of the compromise decree. This sale deed being subsequent renders all the pendente lite sale deeds invalid.
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11. The contesting Respondents are the successors in interest to the subject property having brought the same from/under the Judgment Debtor No.4(a) that too pendente lite. Though a compromise decree is often said to be a contract with the seal of the Court superadded, its efficacy is none the less is on par with a decree passed after a full fledged trial, subject to all just exceptions. The protection available to an obstructer under Order XXI Rule 97 does not extend to a transferee of the suit property pendente lite since Rule 102 excludes applicability of Rules 98 and 100; Rule 101 states that all questions arising between the parties to a proceeding on an application under Rule 97 or Rule 99 shall be determined by the executing Court and not by a separate suit. The application under Rule 97 is decided under Rule 98. Therefore, the order made by the Executing Court on the obstructer's application cannot be said to be a deemed decree under Rule 103 in as 11 much as it was made on the application filed by the transferee pendente lite i.e. the respondents herein as rightly contended by the learned counsel for the Petitioner.
12. The contention of the learned counsel for the Petitioner that, the compromise decree binds the transferee pendente lite by virtue of Section 52 of the Transfer of Property Act, has also force. Whether, such a decree binds the transferee of the suit property by virtue of constructive res judicata does not merit consideration in this case.
13. The contention of learned counsel Mr. Bhadri Vishal that, order made by the Executing Court regardless of the provisions of law quoted in the obstructer's application amounts to a deemed decree in the light of the decision of the Apex Court in Sameersingh Vs. Abdulrub (2015 1 SCC 379) is bit 12 difficult to accept. In the said decision the Apex Court had a different fact matrix and that it was not a case of obstructer being a transferee of the suit property pendente lite. His reliance on the decision of a co- ordinate Bench of this Court in the case of Akkatai @ Sujata Vs. Baburao Sattappa Angol (ILR 1995 KAR 1892) again does not come to the aid of the respondents. Here again the obstruction was not by the buyer of suit property pendente lite. The Court held that, in order to invoke Order XXI Rules 97 to 101, the obstructers should be a person in possession or a person who has been dispossessed in the execution process and not a stranger, who opposes delivery of possession.
14. The contention of Mr. Bhadri Vishal that the Execution Appeal as such has been still pending and that the appellate Court has only held that on the order of the Executing Court the appeal is maintainable and therefore writ petitioner be relegated to the appellate 13 Court below does not impress this Court, either. When prima facie the order made by the Executing Court does not amount to a deemed decree under Rule 103 of Order XXI of CPC, 1908, the question of maintaining the appeal against the same does not arise at all. It is a fit case for setting aside the impugned order made by the Court below on an erroneous impression of law. No purpose will be served in keeping the Execution Appeal pending, when apparently it is incompetent.
15. In the above circumstances, this writ petition succeeds; a writ of certiorari issues quashing the impugned order dated 13.12.2018 made by the learned II Addl. District & Sessions Judge, Ballari, and the contesting Respondents' Execution Appeal No.1/2018 pending on his file stands dismissed.
16. However, this Judgment shall not come in the way of the Respondents taking appropriate proceedings 14 for challenging the order made by the Executing Court, in accordance with law.
No costs.
Sd/-
JUDGE *Svh/-