Allowed

Sri G Manoj Kumar v. Sri C a Mahesh

Karnataka HC3 Sept 2021WP/46538/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a writ petition and set aside a Trial Court order permitting a respondent to lead evidence under Order XXI Rule 97 CPC. The Court held that since the respondent derived title from a judgment-debtor who was found not to be a bona fide purchaser, the respondent had no independent title to contest the decree, making the enquiry unnecessary.

What did the court decide?

Impugned order allowing respondent to lead evidence under Order XXI Rule 97 CPC is set aside; said application is rejected.

Sri G Manoj Kumar Vs Sri C a Mahesh — Specific Performance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF SEPTEMBER 2021

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BEFORE

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THE HON’BLE MR.JUSTICE ASHOK S. KINAGI

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WRIT PETITION NO.46538 OF 2018 (GM-CPC)

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BETWEEN:

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SRI G MANOJ KUMAR S/O GANAPATHILAL BOHRA, AGED ABOUT 42 YEARS R/AT 1^ST MAIN, VIVEKANANDANAGAR, CHANNARAYAPATNA - 577 201.

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...PETITIONER

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(BY SRI. MANJUNATH PRASAD H N, ADVOCATE)

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AND:

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1 . SRI C A MAHESH S/O C R ADISHETTY, AGED ABOUT 61 YEARS R/AT J C ROAD NEAR KANNA BAKERY & PREMIER STUDIO, MYSURU-570 001.

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2 . SRI CHETHAN S/O CHANDRASHEKAR AGED ABOUT 46 YEARS R/AT GAYATHRI EXTENSION, CHANNARAYAPATNA - 577 201.

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….RESPONDENTS

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(BY SRI. SATISHA D J, ADVOCATE FOR C/R-2 R-1 SERVED UNREPRESENTED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD 19.09.2018 VIDE ANNX-E PASSED IN EXE.PETN.NO.97/2017 ON THE FILE OF SENIOR CIVIL JUDGE & JMFC., CHANNARAYAPATNA.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioner aggrieved by the order dated 19.09.2018, passed in Execution Petition No.97/2017 by the Senior Civil Judge, Channarayapatna, has filed the present writ petition.

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Brief facts leading rise to filing of this petition are as under:

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The petitioner has filed a suit in O.S.No.45/2015 for the relief of specific performance of contract against the respondent No.1 and father of respondent No.2. The said suit came to be decreed by judgment

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and decree dated 21.06.2017. Petitioner filed an execution petition in Ex.P.No.97/2017. Respondent No.2 filed an application under Order XXI rule 97 of CPC. Petitioner filed objections to the said application. The Trial Court passed the impugned order holding that the application filed by the respondent No.2 is maintainable and permitted respondent No.2 to lead his evidence in support of his claim. Hence this writ petition.

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Heard learned counsel for petitioner and learned counsel for respondents.

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Learned counsel for the petitioner submits

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that respondent No.2 is not claiming any independent title, on the contrary he is claiming title through defendant No.2 in the suit in O.S.No.45/2015. He further submits that the Trial Court has committed an error in passing the impugned order. In support of his

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contention, he has placed reliance on the judgment of this Court in the case of RAMACHANDRA VS. KEMPAMMA & ORS. [AIR 2003 KARNATAKA 251] and M/S. PYRAMID ENTERTAINMENT (INDIA) OVT. LTD., BANGALORE VS. SMT. DIVYA DEVI [AIR 2018 KARNATAKA 93]. He further submits that the father of respondent No.2 was defendant No.2 in the suit in O.S.No.45/2015 and his written statement was taken on record subject to payment of cost. In fact, the father of respondent No.2 did not pay the cost. Hence the written statement was taken as nil. Further the suit filed by the petitioner was decreed holding that the father of respondent No.2 is not a bona fide purchaser. He further submits that when the father of respondent No.2 has no right, title or interest over the schedule property, the father of respondent No.2 has no right to bequeath the property in favour of respondent No.2. He submits that the Trial Court has

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committed an error in passing the impugned order. Hence, on these grounds, he prays to allow the writ petition.

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Per contra, learned counsel for the

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respondents submits that prior to filing of the suit, the property was already registered in the name of respondent No.2. Hence the judgment and decree is not binding on respondent No.2. He further submits that the application filed by respondent No.2 is maintainable. In order to buttress his arguments, he has placed reliance on the judgment of Hon'ble Apex Court in the case of SHREENATH & ANR. VS. RAJESH &

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ORS. [AIR 1998 SC 1827], N.S.S.NARAYANA SARMA & ORS. VS. M/S. GOLDSTONE EXPORTS (P) LTD. & ORS. [AIR 2002 SC 251] AND ASHAN DEVI & ANR. VS.

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PHULWASI DEVI & ORS. [(2003) 12 SCC 219], and prays to dismiss the writ petition.

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Perused the records and considered the

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submissions made by learned counsel for the parties.

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It is not in dispute that the petitioner has

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filed a suit in O.S.No.45/2015 contending that respondent No.1 has executed an unregistered agreement of sale on 21.03.2012, respondent No.1 has refused to execute the registered sale deed in favour of petitioner. Hence the petitioner issued a legal notice to respondent No.1 on 12.06.2015, expressing his readiness and willingness to perform his part of contract. But the respondent No.1 failed to comply the same. Hence the petitioner filed a suit in O.S.No.45/2015 arraying respondent No.1 as well as father of respondent No.2 as defendants in the said suit. The father of respondent No.2 appeared through his counsel and filed written statement, but failed to pay cost. Hence the written statement was not accepted by the Trial Court. Petitioner led evidence

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and Trial Court after recording the evidence, decreed the suit of the petitioner. In the said judgment, the Trial Court has recorded a finding in paragraph Nos.12 and 13 as under:

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“12) Though, defendant No.1 has executed an agreement of sale in respect of the suit property in favour of the plaintiff on 21.03.2012, he has executed registered sale deed in favour of the defendant No.2 on 06.11.2013 knowing the fact that, he has received advance amount of Rs. 5,00,000/from the plaintiff and inspite of the same, he has executed registered sale deed in favour of the defendant No.2. The defendant No.2 ought to have made enquiries before purchase of the suit property and he would have verified the property records before entering into sale transactions, but he has not made any enquiry and purchased the suit property. Hence, I hold that, he is not a bonafide purchaser. 13) The defendant No.1 sold property to the defendant No.2 in order to defeat the right of the plaintiff which goes to show the malafide intention of the defendant No.1 in non-

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execution of sale deed in favour of the plaintiff. The defendant No.2 has not made any enquiry before purchase of the property and he is not a bonafide purchaser and the defendant No.1 is liable to execute the registered sale deed in favour of the plaintiff. Plaintiff has proved that, defendant No.1 has executed agreement of sale by receiving the earnest money and to that effect, he has examined attesting witness and proved the due execution of agreement of sale. Even plaintiff has issued legal notice which is refused by the defendant No.1 and by sending legal notice, plaintiff has proved that, he is ready and willing to perform his part of contract. So, I hold that, plaintiff has proved sale transaction and his ready and willingness. So, I answer Point No.1 and 2 in the Affirmative.”

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(Emphasis supplied)

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The Trial Court has recorded that the father of respondent No.2 is not a bona fide purchaser and respondent No.1 has sold the suit property to the father of respondent No.2 in order to defeat the right of the petitioner which goes to show the mala fide

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intention of respondent No.1 in non-execution of registered sale deed in favour of the petitioner. It is also observed that the father of respondent No.2 has not made any enquiry before purchasing the property and held that he is not a bona fide purchaser and directed respondent No.1 to execute the sale deed. The father of respondent No.2 did not challenge the judgment and decree passed in O.S.No.45/2015. The said judgment and decree has attained finality. The contention of respondent No.2 that the father of respondent No.2 has executed a registered gift deed bequeathing the suit schedule property prior to the filing of the suit and the petitioner has not made respondent No.2 as a party to the suit and the judgment and decree passed in O.S.No.45/2015 is not binding on the respondent No.2.

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In the present case, respondent No.2 has

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filed an application on the ground that he is the owner

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in possession and enjoyment of the property and his father has purchased the property under registered sale deed and gifted the property on 06.03.2014. As observed above, the Trial Court has held that the father of respondent No.2 is not a bona fide purchaser and decreed the suit against the father of respondent No.2. Further, respondent No.2 is not claiming independent title, but is claiming title through his father who is defendant No.2 in the said suit. If the objector is claiming a right not through the J.Dr., but claiming a right independently, his claim has to be adjudicated on merits. But in the present case, as observed above, the petitioner has already filed a suit against the father of respondent No.2. The father of respondent No.2 has contested the suit. The Trial Court has recorded a finding against the father of respondent No.2 that he is not a bona fide purchaser. Hence, when the father of respondent No.2 is not a

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bona fide purchaser, respondent No.2 has not acquired any title under registered gift deed executed by his father. When the father of respondent No.2 has failed in the suit, he got filed the present application through respondent No.2 in order to protect the execution proceedings. Further, in the case of M/S. PYRAMID ENTERTAINMENT (INDIA) PVT.

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LTD. (SUPRA) , this Court has held as under:

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“11. It is true that the executing court has not held enquiry as contemplated under Rule 101 of Order XXI upon the application of the appellants under Order XXI Rule 97 CPC. This was the point vehemently emphasized by the appellants counsel. The executing court has held that the appellants being the sub- tenants of the judgment debtor are bound by the decree of eviction. I do not find any error committed by the executing court in dismissing the application without holding enquiry. Order XXI Rule 97 CPC envisages a situation where the decree holder complains

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of obstruction to execution by any person and in such a situation the executing court should hold an enquiry to determine the right, title or interest of the obstructor. In this case, it was not the decree holder which made the application complaining of obstruction by the appellants, rather the appellants on their own made the said applications. Therefore, in a situation where the obstructor approaches the court himself, he must be in a position to prima facie make out his right to obstruct the execution and only if a prima facie case is made out by him, the executing court is expected to hold an enquiry in detail. Holding an enquiry may not be necessary if it can be made out apparently that obstruction is caused at the instigation of the judgment debtor or on his behalf or by a transferee from the judgment debtor either during pendency of a suit or execution proceeding. Rules 98 and 101 of Order XXI, CPC must be read together to decide when actually enquiry is necessary. There is every possibility of this provision of

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law being misused by an unscrupulous judgment debtor; any number of applicants may stall the execution of decree by making application under Order XXI Rule 97 of CPC and if every time enquiry is held on such an application, the decree holder will never be able to reap the fruits of the decree. Only if the obstructor has a semblance of right, interest or title superior to that of the decree holder, and if the application under Order XXI Rule 97 does not appear to be frivolous, enquiry is contemplated to determine such right, interest or title. In this case, the appellants do not have independent right or title, they occupied the portion of the building constructed in the leased vacant land and thus their interest is only under the judgment debtor.”

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When this Court has held that if the obstructor makes out a prima facie case, the executing Court is expected to hold an enquiry in detail and holding an enquiry may not be necessary if

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it can be made out apparently that obstruction is caused at the instigation of the judgment debtor or on his behalf or by a transferee from the judgment debtor either during pendency of a suit or execution proceedings. It is further held that the Court can hold an enquiry if the Court comes to the conclusion that application under Order XXI Rule 97 of CPC does not appear to be frivolous, enquiry is contemplated to determine such right, interest or title.

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In the present case, respondent No.2 do not have any independent right or title over the suit property. The interest of respondent No.2 is only under defendant No.2 in O.S.No.45/2015. The Trial Court, without considering the said aspect, has proceeded to pass the impugned order. It is settled law that when such an application is made, it is imperative that the Court should decide the application taking into consideration the fact whether

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the applicant claims a right independent of the judgment-debtor. Rules 98 and 101 of Order XXI of CPC contemplates an enquiry in relation to applications made either under Rules 97 or 99 of Order XXI of CPC. The said Rules 98 and 101 of Order XXI of CPC must be read together to decide when actually enquiry is necessary. There is every possibility that the judgment-debtor may misuse the provisions of law by filing unnecessary applications. If enquiry is to be held on frivolous applications, the petition will never be able to reap the force of the decree.

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The learned counsel for the respondents has relied upon the judgments of the Hon'ble Apex Court. There is no dispute in regard to the proposition of law laid down by the Hon'ble Apex Court that if the objector is claiming an independent right/title, the executing Court can hold enquiry as contemplated

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under the Rules. In the instant case, as observed above, the respondent No.2 is not claiming any independent title or right on the contrary is claiming a right through his father who was defendant No.2 in O.S.No.45/2015. Hence, the question of holding an enquiry on the said application does not arise. The Trial Court, has committed an error in passing the impugned order.

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