Karnataka High Court
Sri M G Ramani vs Smt Indira Deenadayal Naidu on 14 August, 2018
Author: S Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
M.F.A.No.6150/2018 (CPC)
Between:
Smt. M.G.Ramani,
D/o Late.M.Govindaraju,
(Since Dead and no legal heirs)
1. Sri. M.G.Deenadayalan,
S/o Late M.Govindaraju,
Aged about 63 years.
2. Sri. M.G.Ramesh Babu,
S/o Late M.Govindaraju,
Aged about 59 years.
3. Sri. M.G.Murthy,
S/o Late M.Govindaraju,
Aged about 56 years.
4. Sri. M.G.Rajan,
S/o Late M.Govindaraju,
Aged about 53 years.
All are doing business at
Brigade Road, No.185,
Brigade Road, Export Garments,
Bangalore - 560 001. ...Appellants
(By Sri. Mohammed Nasiruddin, Advocate)
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And:
Smt. Indira Deenadayal Naidu,
W/o Late Sri. V.P.Deenadayalu Naidu,
(Since Dead Respondent 2 to 4
are the only Legal heirs of
this Respondent)
1. Smt. Shobha Kamalakar,
W/o Kamalakar,
Aged about 66 years.
2. Smt. Meera Harinath,
W/o Harinath,
Aged about 63 years.
3. Sri. D.Venkatesh,
S/o Late Sri. V.P.Deenadayalu Naidu,
Aged about 60 years.
1 to 3 Partners of Deena
Enterprises together carrying
On business at No.185,
Brigade Road,
Bangalore - 560 001.
4. M/s. Deena Enterprises a
Partnership firm having
its office at No.185,
Brigade Road,
Bangalore - 560 001.
Smt. Kamala Veni,
D/o Late M.Govindaraju.
(Since Dead no legal heirs)
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5. Mrs. J.Saroja,
W/o M.G.Ramachandran,
Aged about 68 years,
No.85, 6th Cross,
Victoria Layout,
Bangalore - 560 047.
6. R.Laxminarayana,
S/o M.G.Ramachandran,
Aged about 43 years,
No.85, 6th Cross,
Victoria Layout,
Bangalore - 560 047.
7. Smt. R.Gayathri
D/o M.G.Ramachandran,
Aged about 37 years,
5 to 7 are residing at No.85,
6th Cross, Victoria Layout,
Bangalore - 560 047. ...Respondents
(By Sri. K.M.Jaganath, Advocate
for R-3 & R-4)
This MFA is filed under Order 43 Rule 1(d) of the
CPC, against the order dated 18.07.2018 passed on
MIS.No.25170/2015 on the file of the 4th Additional City
Civil & Sessions Judge, Mayo Hall Unit, Bengaluru
(CCH-21), rejecting the petition filed under Order 9 Rule
13, 14 read with Section 151 of CPC.
This MFA coming on for admission, this day, the
Court delivered the following:
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JUDGMENT
This appeal has been filed by the applicants in the application filed under Order IX Rule 13 and 14 read with Section 151 of CPC to set aside the decree passed in O.S.16168/1999 dated 17.11.2008.
2. The appellants have assailed the order passed by the Trial Court in accordance with which the petition has come to be dismissed. Respondent Nos.3 and 4 have entered caveat and the appellants seek for a stay of further proceedings in Execution Petition No.25023/2013.
3. The relevant facts being that the appellants herein being the tenants had suffered a decree for ejectment initiated by the respondents. The appellants herein contend that fraud had been played in obtaining a decree in O.S.16168/1999, in so far as the ownership of the property was vested with the partnership firm M/s.Deena Enterprises and hence, respondent Nos.1 to 5 4 were not the owners of the said property, consequently the proceedings for ejectment could not have been maintained.
4. Respondent Nos.3 and 4 state that the Miscellaneous Petition No.25170/2015 filed under Order IX Rule 13 and 14 of C.P.C. is not maintainable, as Order IX Rule 13 and 14 could be invoked only where the decree is passed ex parte.
5. It is further submitted that the appellants herein are abusing the process of the court in so far as even after having suffered a decree in O.S.No.16168/1999 and the same having been affirmed in R.F.A.No.86/2009 and S.L.P. (Civil) No.2694/2012 by dismissal of the appeal, effort is now being made to obstruct the execution of the decree, by fresh proceedings.
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6. The appellants have relied upon the following judgments:-
a) S.P. Chengalvaraya Naidu (dead) by L.Rs., V. Jagannath (dead) by L.Rs. and others reported in AIR 1994 SC 853 - for the proposition that fraud avoids all judicial acts and a judgment and decree obtained by fraud is a nullity and would be treated so by a superior or inferior Court or by a Court even in collateral proceedings.
b) Addanki Narayanappa and another v.
Bhaskara Krishnappa (dead) by his L.Rs. and others reported in AIR 1966 SC 1300 - for the proposition that once the property is brought into the partnership Firm, it would cease to be the exclusive property of the person who has contributed it.
c) State of Kerala and others v. V.B.Vincent
- W.A.1082/2018, dated 03.08.2018 which reiterates the principle laid down in AIR 1966 SC 1300.
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7. The scope of enquiry in the present proceedings is to be determined by the nature of proceedings that has been initiated. The proceedings having been initiated under the provisions of Order IX Rule 13 and 14 of CPC to set aside a judgment that has been passed ex parte, the question of the Court going into the contentions sought to be raised relying on the said judgments is impermissible.
8. Respondent Nos.3 and 4 rely on the following:-
(i) Order dated 02.02.2015 in
W.P.No.56572/2014 (Smt.Ponnurangamma
& Others v. Smt. Indira Deenadayalu Naidu and Others) - the order was passed on a challenge to the order of the trial Court on I.A.No.4 wherein the trial Court had rejected the application to lead evidence in the execution proceedings, viz., Execution Petition No.25023/2013. The appellants rely on observations at para 7 and in particular to the observation that "I find there is no fraud 8 played on the part of the decree holder in execution of decree".
(ii) Order dated 20.04.2018 passed in C.C.C. No.1468/2017 (civil) dated 20.4.2018 whereby this Court had dismissed the contempt petition with certain observations at paras-10 and 11 wherein there was a direction that the Executing Court ought to be vigilant as regards efforts to frustrate execution of the decree.
The observations made in W.P.No.56572/2014 and CCC No.1468/2017 (Civil) are kept in mind while passing the order.
9. Heard both the counsel on the rival contentions advanced as referred to above.
10. The point for consideration in this appeal is as under:
"Whether the appeal requires to be entertained and whether grounds are made 9 out for interference against the order passed by the Trial Court in Misc.No.25170/2015?"
11. At the outset, it is to be noticed that the application itself is not maintainable. A decree that has attained finality on contest and taken up in appeal to this Court and affirmed cannot be permitted to be disturbed by invoking the provisions of Order IX Rule 13 and 14 of CPC. S.L.P. (Civil) No.2694/2012 which came to be dismissed affirming the order passed in appeal R.F.A.No.86/2009 which in turn had confirmed the judgment in O.S.No.8669/2012. In the light of such facts, attempt to re-open proceedings by resorting to Order IX Rule 13 and 14 of CPC is impermissible, as it is not the case of the appellant that the judgment was passed ex-parte.
12. This appeal is also not liable to be entertained in view of the fact that the appellants are pursuing parallel remedies to set aside the judgment and decree 10 passed in O.S.No.16168/1999 in so far as in other suit O.S.No.8669/2012 has been filed seeking for the relief of declaration that the judgment and decree passed in O.S.No.16168/1999 passed by the Trial Court is to be treated as a nullity and ought to be set aside as the same is illegal, and on the other hand present miscellaneous proceedings by filing an application under Order IX Rule 13 and 14 of CPC has also been initiated seeking to set aside the judgment and decree on the same grounds. This conduct of the appellants is also to be deprecated and would amount to abusing the process of the Court. In fact, on an earlier occasion, the appellants had filed a interlocutory application I.A.No.4 seeking permission to lead evidence contending that the decree holders i.e., the respondents herein had suppressed the existence deed of re-constitution of the partnership firm and required an opportunity to lead evidence.
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13. The said interlocutory application came to be dismissed by the Trial Court and on challenge before this Court in W.P.No.56572/2014, the Court after having considered all the contentions of the parties, dismissed the said Writ Petition observing that the four partners of the firm were also arrayed as parties in the original suit proceedings and in passing has observed that it could not be said that fraud had been played on the part of the decree holder.
14. It is not out of place to note that against the judgment and decree passed in O.S.No.16168/1999 the present appellants had preferred an Regular First Appeal No.86/2009 which came to be dismissed on 6.9.2011 and while granting time to vacate on or before 31.12.2012, the appellants herein were required to file an undertaking to the effect that they would voluntarily vacate and hand over vacant possession of the premises on or before 31.12.2012. In fact, after the order in 12 R.F.A.No.86/2009, the Special Leave Petition filed against the said order having been dismissed, the appellants herein have resorted to the miscellaneous proceedings and also instituted separate proceedings in O.S.No.8669/2012 seeking to set aside the decree passed in O.S.No.16168/1999.
15. Looking into the nature of the decree passed, there is no warrant for the appellants herein having filed an application under Order IX Rule 13 and 14 of CPC and further when all proceedings in the earlier round and the present proceedings are between the same parties, the attempt to thwart the decree obtained through the present proceedings ought not to be permitted.
16. Accordingly, the appeal stands dismissed. It is reiterated that the executing Court ought to ensure that the decree is executed in an expeditious manner taking note of the fact that the suit came to be decreed way 13 back 17.11.2008 and while doing so had in fact, granted 90 days time to the appellants herein to vacate and hand over vacant possession of the suit schedule property, and the S.L.P. (Civil) No.2694/2012 itself came to be dismissed on 3.2.2012, affirming the judgment of the Trial Court.
No notice to other respondents is warranted in the present appeal.
Sd/-
JUDGE RS/* ct:am