Karnataka High Court
Chanabasappa S/O. Ningappa ... vs Hussainbi W/O. Ismail Sab Melligatti on 21 January, 2022
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH AT
DHARWAD
DATED THIS THE 21TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM
M.S.A.NO.677/2013
BETWEEN :
CHANABASAPPA
S/O NINGAPPA PARAMMANAVAR
AGED- 59 YEARS,
OCC: AGRICULTURE,
R/O. VENKATAPUR,
TALUK & DIST: HAVERI.
... APPELLANT
(BY SRI SRINAND A.PACCHAPURE ADV. &
SMT.PALLAVI S.PACCHAPURE, ADV.)
AND :
1. SMT.HUSSAINBI
W/O. ISMAILSAB MELLIGATTI
MUSLIM, AGED 54 YEARS,
OCC: AGRIL.& HOUSEHOLD,
R/O. DEVIHOSUR,
TQ AND DIST: HAVERI-581152.
2. SMT.KHATUMBI
W/O. KHADARSAB DODDAMANI
MUSLIM, AGED: 61 YEARS,
OCC: AGRI. & HOUSEHOLD,
R/O. NAREGAL,
TQ & DIST: HAVERI-581165.
3. SMT.IBRAHIMSAB
S/O. PEERSAB MELLIGATTI,
MUSLIM, AGED 69 YEARS,
OCC: TAILORING
R/O. KANAVALLI,
TQ & DIST: HAVERI-581172.
2
4. ABDULAJEEJ
S/O PEERSAB MELLIGATTI,
MUSLIM, AGED: 59 YEARS OCC: AGRI,
R/O. HAVERI,
TQ & DIST: HAVERI-581110.
5. AHMEDSAB
S/O. PEERSAB MELLIGATTI
MUSLIM, AGED 54 YEARS,
OCC: AGRICULTURE,
R/O. HAVERI,
TQ & DIST: HAVERI-581110.
6. SMT.RAJIYABEGUM
W/O SULEMAN DODDAMANI.
MUSLIM, AGED 38 YEARS,
OCC: HOUSEHOLD WORK,
R/O. NAREGAL,
TQ. & DIST: HAVERI-581165.
7. MAQBUL AHMAD,
S/O. IBRAHIMSAB MELLAGATTI.
AGED 25 YEARS,
OCC: AGRICULTURIST,
R/O VENKATAPUR,
TQ AND DIST: HAVERI-581110.
...RESPONDENTS
(NOTICE TO RESPONDENT NOS.1 TO 4 & 6 : SERVED)
(NOTICE TO RESPONDENT NO.5 : HELD SUFFICIENT)
(BY SRI N.P.VIVEKMEHTA ADV. FOR R.7)
THIS MISCELLANEOUS SECOND APPEAL IS FILED 104
READ WITH SECTION 43 RULE 1(U) OF THE CODE OF CIVIL
PROCEDURE, 1908, PRYING THIS COURT TO SET ASIDE THE
JUDGMENT AND DECREE DATED 14.08.2013 PASSED IN
R.A.NO.39/2011 BY THE DISTRICT JUDGE AT HAVERI BY
RESTORING THE ORDER DATED 24.02.2011 PASSED ON
I.A.NO.5 IN E.P.NO.48/2007 BY THE PRINCIPAL SENIOR CIVIL
JUDGE & C.J.M., HAVERI IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
3
: JUDGMENT :
The captioned miscellaneous second appeal is filed by the decree holder questioning the order of remand passed by the First Appellate Court in R.A.No.39/2011.
2. The facts leading to the above said case are as follows:
The appellant/plaintiff filed suit for specific performance of contract in O.S.No.52/1994 against one Ismailsab Peersab Mellagatti. The said suit was seriously contested by the legal heirs of original vendor. On contest, the suit filed by the present appellant herein came to be decreed by judgment and decree dated 18.01.2007.
3. Being aggrieved by the judgment and decree passed in O.S.No.52/1994, the legal heirs of original vendor Ismailsab Peersab Mellagatti, preferred an appeal in RFA.No.1241/2007 before this Court. This 4 Court rightly dismissed the appeal. The present appellant based on decree passed in O.S.No.52/1994, filed execution petition in E.P.No.48/2007. Respondent No.7 who is none other than son of respondent No.3/defendant No.3 filed an application in I.A.No.5 under Order XXI Rule 97 of the Code of Civil Procedure, 1908 ("CPC" for short) by asserting that the original vendor namely Ismailsab Peersab Mellagatti who had executed an agreement to sell in favour of the present appellant/plaintiff has bequeathed the land in his favour. The said application was strongly objected by the appellant herein.
4. The Executing Court having examined the claim made by respondent No.7 proceeded to reject the application filed in I.A.No.5 by holding that the applicant has no right to maintain the application filed under Order XXI Rule 97 of CPC.
5. Respondent No.7 feeling aggrieved by the rejection of application preferred an appeal in 5 R.A.No.39/2011. The Appellate Court quoting Rule 101 of Order XXI of CPC has come to conclusion that since the applicant is asserting independent right over the property and is also asserting possession, his claim has to be dealt and adjudicated in the very execution proceedings and the same cannot be done by way of separate suit. The Appellate Court by following the dictum laid by the Hon'ble Apex Court in the case of Tanzeem-E-Sufia Vs. Bibi Haliman And others reported in AIR 2002 SC 3083 has come to conclusion that the application cannot be rejected without investigation and once an application is filed, Rule 101 of CPC contemplates and mandates that enquiry has to be conducted. On these set of reasonings, the Appellate Court has proceeded to allow the appeal and remanded the matter to the Executing Court and consequently set aside the order passed by Executing Court on I.A.No.5 directing the Executing Court to decide the claim of respondent 6 No.7/obstructor. Against this remand order, the present appeal is filed by the decree holder.
6. Learned counsel appearing for appellant would vehemently argue and contend before this Court that respondent No.7 has no independent right and is virtually claiming right through the original vendor on the basis of alleged Will executed by Ismail Peersab. She would submit to this Court that, the suit for specific performance of contract filed by the present appellant was decreed and confirmed by this Court. It is also stated that in the execution proceedings, a Court Commissioner was appointed and sale deed came to be executed on 24.10.2007. She would place reliance on the judgment rendered by this Court in the case of Sulochana Ramaray Vemekar and others Vs. Devappa Bagigeppa Hudelakoppa and others reported in 2021 (4) AKR 431, would submit to this Court that if obstructor prima facie does not show that he has got 7 independent right than that of judgment debtors, then it is well within the jurisdiction of executing Court to summarily reject the application rather than treating the said application as an independent suit and thereby permit the obstructor to lead evidence. She would submit to this Court that in the present case on hand the obstructor is asserting his right on the basis of a Will which necessarily implies that he is not claiming any independent right than that of judgment debtors. Therefore, she would submit to this Court that the executing Court had rightly summarily rejected the application. On these set of reasonings, she would submit to this Court that the order of the Appellate Court in directing the executing Court to decide the claim of respondent No.7/obstructor suffers from perversity and the same is contrary to settled principles of law relating to right of an obstructor.
7. Per contra, learned counsel appearing for respondent No.7 would however support the reasons 8 and conclusions arrived at by the Appellate Court. He would submit to this Court that once an obstruction application is filed, Rule 101 of Order XXI of CPC mandates that there has to be an enquiry. Without enquiry, the claim of obstructor cannot be out rightly rejected. In the present case on hand, the Executing Court has summarily rejected the application and this precisely has resulted in miscarriage of justice which has been undone by the First Appellate Court by setting aside the order of the Executing Court passed on I.A.No.5.
8. Heard learned counsel appearing for the appellant and learned counsel appearing for the respondent No.7. Perused the order under challenge and also judgments cited by the learned counsel appearing for the appellant.
9. The short point that would arise for consideration in the present case on hand is whether respondent No.7 can seek adjudication of his right by 9 claiming that the original vendor of appellant/decree holder has executed a Will in his favour. My answer is 'no'. It is a trite law that when a third party application is filed, it is incumbent on the part of Executing Court to find out as to whether the third party is in possession and is having an independent right. In catena of judgments, the Hon'ble Apex Court and this Court have held that Rule 97 of Order XXI of CPC cannot be converted into a tool in the hands of highhanded and self seeking person. The scheme of Order XXI Rule 97 of CPC is to see that bona fide person is not thrown out by the decree holder. Therefore, the applicant who has filed an obstruction application has to prove not only his possession but he has to establish further that his possession was not obtained from or under the judgment debtor.
10. If these principles are taken into consideration then I am of afraid that the claim of respondent No.7 is tainted with malafides and the 10 same cannot be looked into and therefore the executing Court was justified in rejecting the application out rightly. What is borne out from the records is that, the appellant/decree holder has succeeded in the suit and the other respondents/ judgment debtors have suffered decree at the hands of this Court wherein decree for specific performance of contract was confirmed by this court. It is also forthcoming from the records that the decree holder has secured a sale deed through Court process. The Courts while deciding the claim of decree holder under the agreement to sell have recorded categorical finding that the original vendor parted with possession and consequently suit filed by the decree holder was decreed. This also necessarily implies that the finding on possession recorded by the Courts while deciding the suit agreement has also attained finality. If these relevant aspects are taken into consideration, then I am of the view that respondent No.7 has no independent right and by setting up a will alleged to 11 have been executed by the original vendor, an attempt is made to re-litigate and frustrate the decree which has attained finality. If the obstruction application is not supported by any title documents, which are independent then that of the claim of judgment debtors, question of holding an enquiry merely because an obstruction application is filed is not permissible and that is not the object of Rule 97 of CPC. In this background, the finding recorded by the Appellate Court that once an application is filed under Order XXI Rule 97 of CPC, the consequences have to follow as per Rule 101 of Order XXI of CPC and there has to be an enquiry is perverse, palpably erroneous and in absence of any title documents placed on record by respondent No.7.
11. Therefore, the remand order passed by the Appellate Court is not at all sustainable. Hence, I proceed to pass the following order.
12
ORDER
i) The miscellaneous second appeal is hereby allowed.
ii) The judgment and decree dated 14.08.2013 passed by the First Appellate Court in R.A.No.39/2011 is hereby set aside.
iii) The order dated 24.02.2011 passed on I.A.No.5 in E.P.No.48/2007 by the Executing Court rejecting the application filed by respondent No.7 is hereby confirmed.
Sd/-
JUDGE EM