Dismissed

Smt Shanthubai v. Smt Ramabai

Karnataka HC7 Sept 2021RSA/219/2014

Case brief

AI extract

What is this about?

The High Court, Bengaluru, dismissed the appeal by the objector in execution proceedings. The Court held that while there was procedural irregularity in not conducting an enquiry, the grant of possession to the decree holder's legal representatives in a concluded property suit precluded allowing a stay via the pending suit. The Court directed the objector to raise contentions in the pending suit.

What did the court decide?

The appeal was disposed of with an order directing the appellant to pursue their contentions in the pending suit O.S.No.266/2013.

Smt Shanthubai Vs Smt Ramabai — Execution and Attachment | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 07^TH DAY OF SEPTEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. No.219/2014

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BETWEEN:

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SMT SHANTHUBAI W/O LATE KANTOJIRAO JAGATAPH AGED ABOUT 65 YEARS R/A MANCHABAYANAHALLI VILLAGE GAVADAGERE HOBLI HUNSUR TALUK-571 610 SENIOR CITIZENSHIP NOT CLAIMED

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... APPELLANT

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(BY SRI.BALAKRISHNA SHASTRY, ADVOCATE)

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AND:

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SMT RAMABAI

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SINCE DEAD BY HER LRS

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a. SRI K S VENKOBARAO BHANGE S/O LATE RAMABAI AGED ABOUT 73 YEARS R/A KALENAHALLI VILLAGE KASABA HOBLI

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K R NAGAR TALUK-571 602

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b. SRI KRISHNOJIRAO BHANGE S/O LATE RAMABAI AGED ABOUT 70 YEARS R/A KALENAHALLI VILLAGE KASABA HOBLI K R NAGAR TALUK-571 602

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c. SRI RAMACHANDRARAO BHANGE

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S/O LATE RAMABAI AGED ABOUT 28 YEARS R/A NO.28, BAZAR ROAD K R NAGAR TOWN-571 602

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d. SMT KAMALABAI W/O LATE RATNOJIRAO PADATHARE AGED ABOUT 68 YEARS R/A MARAGOWDANAHALLI VILLAGE GAVADAGERE HOBLI HUNSUR TALUK-571 610

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SMT DEVOOBAI DEAD BY LRS

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a. K S RAMACHANDRA RAO SHINDE S/O LATE BHAGAVANTHRAO SHINDE AGED ABOUT 67 YEARS

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b. SMT. DEVOOBAI S/O LATE BHAGAVANTHRAO SHINDE MAJOR BOTH R/AT NO.28, BAZAR ROAD K.R.NAGAR TOWN

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(SINCE DEAD BY LR R2(a) IS TREATED AS LR)

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AMENDED AS PER COURT ORDER DATED 29.06.2016.

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... RESPONDENTS

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(BY SRI T.N.RAGHUPATHY, ADVOCATE FOR R1 (a-d) & R2(a); R2(a) IS TREATED AS LRs OF DECEASED R2(b))

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THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 7.1.2014 PASSED IN R.A.NO.96/2014 ON THE FILE OF SENIOR CIVIL JUDGE, HUNSUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 24.9.2013 PASSED ON IA NO.2 AND IA NO.4 IN EXECUTION NO.17/13 ON THE FILE OF CIVIL JUDGE AND JMFC, HUNSUR, DISMISSING IA NO.2 FILED U/ORDER 21 RULE 97 TO 103 AND IA NO.4 FILED U/S 151 CPC.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT, MADE THE FOLLOWING:

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J U D G M E N T

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Appellant herein is an objector in Execution

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No.17/2013 on the file of the Civil Judge and JMFC at Hunsur, challenging the judgment and decree dated 07.01.2014 passed in RA.No.96/2013 on the file of the

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Senior Civil Judge at Hunsur, confirming the order passed by the trial Court in Execution No.17/2013 dated 24.09.2013.

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For the sake of convenience, the parties in

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this appeal shall be referred to in terms of their status and ranking before the Executing Court.

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The appellant, being an objector in Execution No.17/2013 on the file of the Civil Judge and JMFC at Hunsur, has filed I.A Nos. II and III under Order XXI Rules 97 to 103; Order XXI Rule 26 respectively read with Section 151 of the Code of Civil Procedure and I.A No.IV under Section 151 of C.P.C.,

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seeking an order of restraining the decree holder from dispossessing the objector from the suit schedule property till the disposal of the suit in O.S.No.266/2013. The decree holder has filed the objection to the said I.As and the Executing Court, after hearing the learned counsel appearing for the parties therein, by order dated 24.09.2013 dismissed the I.A Nos. II to IV. Being aggrieved by the same, the objector has filed R.A No.96/2013 on the file of the First Appellate Court and the said appeal was resisted by the decree holder. The First Appellate Court, after considering the material on record, by judgment and decree dated 07.01.2014 dismissed the appeal, consequently, confirmed the order dated 24.09.2013 passed by the trial Court, dismissing the I.A Nos. II to IV filed by the objector. Being aggrieved by the impugned judgment and order passed by the Courts below, the objector has presented this second appeal.

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I have heard Sri Balakrishna Shastry,

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learned counsel appearing for the appellant/objector and Sri T.N.Raghupathy, learned counsel appearing for the respondent/decree holder.

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Sri Balakrishna Shastry, learned counsel

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appearing for the appellant contended that the trial Court has committed an error in not considering the fact that when an application is filed under Order XXI Rules 97 to 103 of C.P.C., it is the bounden duty of the trial Court to conduct enquiry and thereafter pass appropriate orders. He contended that, there is a procedural irregularity committed by the trial Court while dismissing the I.A Nos. II to IV filed by the objector, as the objector is in possession of the suit schedule property and there is a suit pending in

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respect of the subject matter of Execution Petition in O.S.No.266/2013 and therefore, he contended that the procedural irregularity in not conducting the enquiry by the trial Court amounts to erroneous application of law

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by the trial Court. He further contended that the First Appellate Court having not taken note of the said fact of an enquiry is to be conducted under such circumstances, however, has held that the applications are pre-mature, is not correct and require to be interfered with in this appeal.

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Per Contra, Sri T.N.Raghupathy, learned counsel appearing for the respondents/decree holder submitted that the decree holder has filed O.S.No.51/1995 with regard to the subject matter of

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the suit, which came to be confirmed by the First Appellate Court in R.A No.51/1999 and affirmed in R.S.A No.202/2010 by this Court and same has reached finality and in that view of the matter, the applications filed by the objector before the trial Court are not maintainable. He further contended that, the decree holder had taken the possession of the land on 21.03.2014 and therefore, the appeal itself does not

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survive for consideration and accordingly, he sought for dismissal of the appeal.

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Having heard the learned counsel appearing

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for the parties, I have carefully considered the finding recorded by both the Courts below. It is not in dispute that the decree holder has filed O.S.No.51/1995 before the trial Court which has reached finality by virtue of the judgment passed by this Court in R.S.A No.202/2010 affirming the same and thereafter, the decree holder has filed Execution No.17/2013 before

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the Executing Court to implement the judgment and decree passed in the aforementioned case. However,

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the objector has filed an application under Order 21 Rules 97 to 103 read with Section 151 of the Code of Civil Procedure, stating that she is in possession of the

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suit schedule property and the subject matter of the suit in O.S.No.51/1995 is also the subject matter in O.S.No.266/2013 and the later suit is pending consideration before the competent Court and until the

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said suit in O.S.No.266/2013 is disposed of by the competent Court, the Execution proceedings are liable to be stayed. However, having taken note of the finding recorded by the trial Court, I have considered the fact that the suit in O.S.No.51/1995 has reached this Court in R.S.A No.202/2010 and the judgment and decree passed by the trial Court in O.S.No.51/1995 has reached finality with regard to relief of declaration and possession and also mesne profit. Though procedural irregularity has been committed by the trial Court in not conducting enquiry as required under law, however, the trial Court has observed that the suit in O.S.No.266/2013 is pending consideration before the Court and the objector is a party in the said suit. However, the decree holder in O.S.No.51/1995 has succeeded in relief of declaration and possession and it is further observed that the decree holder is no more and her legal representatives have been brought on record. Suffice it to say that, though the intention of filing of the suit is to enjoy the property, but litigant

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dragging the matter upto the Court and thereafter filing application by the objector not allowing the legal representatives to enjoy the suit schedule property, would lead to hardship to the decree holder in O.S.No.51/1995 and accordingly, the said finding recorded by the Executing Court is just and proper in the ends of justice. However, since the learned counsel appearing for the appellants has contended that the O.S.No.266/2013 is pending consideration before the competent Court with regard to the very same subject matter and in that view of the matter, I am of the view that contentions raised before this Court in the present appeal is to be taken up by the objector in the pending suit in O.S.No.266/2013.

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Yet another ground for disposal of this

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appeal is that, the decree holder had already taken the possession of the subject property on 21.03.2014, as contended by the learned counsel appearing for the respondents and the same was not resisted by the

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learned counsel appearing for the appellant and in fact the learned counsel appearing for the respondents made available the xerox copy of the order sheet in Execution No.17/2013. In that view of the matter, I am of the considered view that the appeal deserves to be disposed of in terms of the observation made above. Appeal accordingly, disposed of.

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Sd/JUDGE

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HB/-

Smt Shanthubai v. Smt Ramabai

Case brief

What is this about?

What did the court decide?

Smt Shanthubai v. Smt Ramabai

Case brief

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