Dismissed

M.P. Kaveesha v. Smt. Vasanthamala Dattatri

Karnataka HC12 Aug 2022CRP/419/2015

Case brief

AI extract

What is this about?

The High Court dismissed a civil revision petition challenging the dismissal of an application for identification and demarcation of schedule property in execution proceedings. The Court held the petition was not maintainable under Section 115 CPC as the admission did not finally dispose of the suit, and existing final judgments confirmed the decree holder's title and possession.

What did the court decide?

Revision petition dismissed as not maintainable under Section 115 of the Code of Civil Procedure.

M.P. Kaveesha Vs Smt. Vasanthamala Dattatri — Execution and Attachment | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF AUGUST, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE E.S.INDIRESH

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CIVIL REVISION PETITION NO.419 OF 2015 (IO)

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BETWEEN:

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M P KAVEESHA S/O M G PANCHAKSHARAIAH AGED ABOUT 55 YEARS R/O VIJAYAPURA EXTENSION CHIKMAGALUR-577 101.

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…PETITIONER

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(BY SRI. VARDHAMAN V GUNJAL, ADVOCATE)

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AND:

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SMT. VASANTHAMALA DATTATRI W/O LATE B N DATTATRI AGED ABOUT 66 YEARS R/O BASAVANAHALLI MAIN ROAD CHIKKAMAGALURU-577 101.

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…RESPONDENT

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(BY SRI DATTA PRASAD G, ADVOCATE FOR SRI MANMOHAN P N, ADVOCATE)

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THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 03^RD FEBRUARY, 2015 PASSED ON I.A. NO.32 IN EX.NO.98 OF 2002 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC AT CHIKMAGALUR, DISMISSING THE APPLICATION FILED UNDER

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ORDER 21 OF RULE 35 (1) AND (3) R/W SEC.151 OF CODE OF CIVIL PROCEDURE.

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IN THIS PETITION ARGUMENTS BEING HEARD, JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This Revision Petition is filed by the impleading applicant/objector in Execution Petition No.98 of 2002 on the file of the II Additional Civil Judge and JMFC at Chikkamagalur, rejecting the application filed under Order XXI 21 Rule 35(1) read with Section 151 of Code of Civil Procedure.

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Relevant facts for adjudication of this Revision Petition are that HRC No.6 of 1992 was filed by Smt. Vasantamala Dattatri against one Sri Dheerubhai under Section 21(1)(f) and (h) of Karnataka Rent Control Act, 1961 (for short hereinafter referred to as ‘Act’) and the said proceedings came to be allowed and same was challenged before the Additional District Judge, Chikkamaglur in Rev.(Rent) No.35 of 1996 of and the said Revision also came to be dismissed. Being aggrieved by the same, HRRP No.394 of 2000 was filed before this Court, which also ended up in dismissal and while examining the plea of

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tenant for grant of time, this Court granted one year time to the tenant to vacate on the condition that the tenant therein shall file an undertaking to the said effect. It is an undisputed fact that the tenant did not file an undertaking nor vacated the premises and as such, the decree holder-Smt. Vasantamala Dattatri filed Execution Petition No.98 of 2002 before the Executing Court, to enforce the judgment and decree of the trial Court. In the said Execution Proceedings, brother of the petitioner herein filed an application under Order XXI Rule 97 of Code of Civil Procedure and the said application came to be rejected and same was confirmed by the District Court in Regular Appeal No.2000 of 2012 and also confirmed by this Court in Regular Second Appeal No.2051 of 2012. In the Execution Proceedings No.98 of 2002, the petitioner herein/objector filed an application under Order XXI Rule 35(1) and (3) read with Section 151 of Code of Civil Procedure praying for identification and demarcation of petition schedule property through competent person and the said application was resisted by the decree holder. The trial Court, by its order dated 03^rd February, 2015 rejected the said application filed by the objector/petitioner

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herein and being aggrieved by the same, present Revision Petition is preferred.

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Heard Sri Vardhaman V. Gunjal, learned counsel appearing for the Revision Petitioner and Sri Datta Prasad G., learned counsel appearing on behalf of Sri Manmohan P.N., for the respondent.

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Sri V.V. Gunjal, learned counsel appearing for the petitioner contended that the rejection of the application filed by the objector/petitioner is without jurisdiction and the petitioner/objector sought for identification and demarcation of his property, as the objector/petitioner was dispossessed unlawfully by the respondent herein and accordingly he sought for interference of this Court. He also referred to the provisions contained under Section 115 of Code of Civil Procedure and argued that the revision petition is maintainable. Sri Gunjal, further contended that Order XXVI of Code of Civil Procedure does not apply to the proceedings in Executing Court and therefore, he argued that the trial Court, on misconception of fact, has rejected the application. He further contended that the

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Executing Court has not bestowed its attention to the fact that measurements were uncertain and same was manipulated and were fraudulently changed and it is difficult to identify the particular portion belonging to the petitioner herein in view of dispossession of the petitioner/objector. He also refers to provision contained under Section 47 Code of Civil Procedure and further submitted that the Executing Court ought to have interfered with the impugned order passed by the trial Court. Emphasising on these aspects, he contended that Order VII Rule 3 of Code of Civil Procedure mandates that, if the subject matter of the suit is an immovable property, entire particulars regarding the immoveable properties should be described in the schedule and in the absence of such description in the schedule, the Execution proceedings itself is not maintainable. In this regard, he referred to the judgment of the Hon'ble Apex Court in the case of SAYYED RATANBHAI SAYEED (DEAD) BY LRS AND OTHERS v. SHIRDI NAGAR PANCHAYAT AND ANOTHER reported in AIR 2016 SC 1042 and contended that the subsequent events have to be taken into consideration while adjudicating this Revision Petition. He also referred to the law declared by the

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Hon'ble Apex Court in the case of DHURANDHAR PRASAD SINGH v. JAI PRAKASH UNIVERSITY AND OTHERS reported in AIR 2001 SC 2552; and in the case of M.P. SRIVATSAVA v. MRS. VEENA reported in AIR 1967 SC 1193. He also relied upon the judgment of Hon'ble Apex Court in the case of SHAFIQUR REHMAN KHAN AND ANOTHER v. SMT. MOHAMMAD JAHAN BEGUM AND OTHERS reported in (1982)2 SCC 456 and further argued that as the decree holder fails to establish the identity of the property, the decree passed by the competent court cannot be accepted.

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Per contra, Sri Datta Prasad G, learned counsel appearing for the respondent argued that the Revision Petition under Section 115 of Code of Civil Procedure is not maintainable against the order of dismissal of the impugned application by the trial Court. In this regard he referred to the judgment of Hon'ble Apex Court in the case of TEK SINGH v. SHASHI VERMA AND ANOTHER reported in 2019 SCC ONLINE SC 168 and in the case of SHIV SHAKTI CO-OPERATIVE HOUSING SOCIETY, NAGPUR v.

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SWARAJ DEVELOPERS AND OTHERS reported in (2003)6 SCC 659.

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In the light of the submission made by the learned counsel appearing for the parties, the core question to be answered in this Revision Petition is, whether the Revision Petition under Section 115 of Code of Civil Procedure is maintainable under law against the impugned order passed by the trial Court?

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The impugned order is passed by the Executing Court against the application filed by the petitioner/objector in IA.No.32 under Order XXI Rule 35(1) and (3) read with Section 151 of Code of Civil Procedure. In this regard, it is relevant to deduce Section 115 of Code of Civil Procedure, which reads as under:

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“Sec. 115. Revision-(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-

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(a) to have exercised a jurisdiction not vested in it by law, or

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(b) to have failed to exercise a jurisdiction so vested, or

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(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

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the High Court may make such order in the case as it thinks fit:

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[Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.]

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[(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.]

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(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.”

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The Hon'ble Apex Court in the case of TEK SINGH (supra), at paragraphs 6 and 7 of the judgment, has observed thus:

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“ 6. We are constrained to observe that every legal canon has been thrown to the winds by the impugned judgment. First and foremost, the 1999 amendment to the Code of Civil Procedure added a proviso section 115 which read as follows:

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(a) to have exercised a jurisdiction not vested in it by law, or

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(b) to have failed to exercise a jurisdiction so vested, or

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(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

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the High Court may make such order in the case as it thinks fit:

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*** *** ***

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(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.”

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7. A reading of this proviso will show that, after 1999, revision petitions filed under Section 115 Code of Civil Procedure are not maintainable against interlocutory orders. ”

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In the case of SHIVA SHAKTI (supra), at paragraphs 30 to 32, it is observed thus:

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“30. Sub-section (2) of Section 115 has remained unaltered even after the amendment by the Amendment Act. A new sub-section (3) has been added in Section 115 by the Amendment Act which states that revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the High Court.

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31. In Section 2, the expressions "decree" and "order" have been defined in clauses (2) and (14) respectively. It is to be noted that it matters little that the judgment is styled as an "order". If, in fact, it fulfils the conditions of the definition under Section 2(2), it is a decree and becomes appealable. Orders that are not appealable are, generally speaking, those which are procussual i.e. interlocutory or incidental orders regulating proceedings but not deciding e any of the matters of controversy in the suit. Order 43 deals with "appeals from orders". These appeals lie under Section 104 of the Code. The said section deals with appeals from orders and specifies the orders from which appeals can lie. Sub-section (2) of Section 104 says that no appeal shall lie from any order passed in appeal under the said section. Section 104 and Order 43 Rule 1 contain a full list of appealable orders. An order which amounts to a

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decree within Section 2 (2)does not fall within Section 104 and the only applicable section is Section 96. Clauses (a) to (f) of Section 104 were omitted by Arbitration Act, 1940. Section 105 relates to other orders. It, inter alia, relates to any order i.e. to appealable as well as nonappealable orders. It is in the nature of a prohibition stipulating that save as otherwise expressly provided, no appeal shall lie from any order made by a court in g exercise of original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. Sub-section (2) deals with case of remand. This section, in fact, contemplates two things i.e. (1) regular appeal from decree; and (2) the provision relating to grant of objection relating to interim order. Order 43 Rule 1 is an integral part of Section 104.

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32. A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is "yes" then the revision is maintainable. But on the contrary, if the answer is "no" then the revision is not maintainable. Therefore, if the impugned order is interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject-matter of revision under Section 115.

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There is marked distinction in the language of Section 97(3) of the Old Amendment Act and Section 32(2)(i) of the Amendment Act. While in the former, there was a clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered, the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation.”

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The learned counsel appearing for the revision petitioner, raised several contentions on the merits of the case. However, the learned counsel appearing for the respondent, submitted that the decree holder had taken possession of the property in question, in terms of the judgment and decree dated in Original Suit No.118 of 2012 and the decree holder is also in possession of the petition schedule property and therefore, identification of petition schedule property, as contended by the petitioner herein, cannot be accepted. The said submission made by the learned counsel appearing for the respondent was accepted by the petitioner herein and admits the dispossession

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of the petitioner herein from the suit schedule property and as such, he argued for restitution of his property before the Court also. Taking into consideration the scope and ambit of Section 115 of Code of Civil Procedure, it may be presumed that, even if this Court allows this Revision Petition, the Execution Petition could not be revived as same has reached finality, as the Executing Court closed the proceedings in terms of the report of the ameen that the schedule property in Original Suit No.118 of 2012 has been handed over to the respondent herein/decree holder. In that view of the matter, I find force in the submission made by the learned counsel appearing for the respondent that the Revision Petition is not maintainable as the petitioner herein has to work out his remedy in accordance with law.

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It is also to be noted that the petitioner herein has filed IA.III in Original Suit No.118 of 2012, before the trial Court and same was rejected by the trial Court on 15^th June, 2013 and being aggrieved by the same, the petitioner herein has filed MFA No.5894 of 2013 before this Court, which came to be dismissed by this Court with cost of Rs.10,000/-, against which the

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petitioner herein has filed SLP (C) No.29541 of 2014 before the Hon'ble Supreme Court, which came to be dismissed vide order dated 17^th November, 2014 and same has reached finality relating to the right of the decree holder/respondent herein. At this juncture, it is necessary to extract the observation made by this Court at paragraph 9 of the judgment.

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“ 9. Before delving upon rival contentions raised and adjudicated upon by trial Court, it would be necessary for this Court to briefly state the facts or history of the present case which has led to filing of the present appeal and same can be crystallised as under:

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First Defendant in the present suit initiated eviction proceedings under Section 21(1)(f) &(h) of Karnataka Rent Control Act, 1961 against one Sri Dheeru Bai in HRC No.6/1992 which petition came to be allowed and same was challenged before Addl.District Judge, Chickmagalur in Rev.(Rent) 35/1996 and said revision also came to be dismissed. Being Being aggrieved by the said order, further revision in HRRP No.394/2000 was filed before this Court which also ended in dismissal and while examining the plea of tenant for grant of time, this Court after considering contentions of learned Advocates appearing for the parties, granted one year time to vacate on the condition that revision petitioner - tenant therein filing an undertaking to the said effect. Order

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passed by co-ordinate Bench of this Court while dismissing the Revision Petition filed by tenant reads as under:

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"3. A broad consensus has been arrived at as to how much time the petitioner should be given for vacating the premises. In the facts and circumstances of the case, one year time from this day is granted to vacate the premises on condition that the petitioner files an undertaking to the effect that she will withdraw all contentions made in the petition and will hand over premises vacant to the possession of the respondent without compelling the respondent to file an execution petition, she will not induct any tenant, she will pay the rent regularly every month. The said undertaking shall be filed by the tenant-petitioner within four weeks from today. If such an undertaking is not filed, the respondent is at liberty to execute the order of eviction forthwith."

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It is also not disputed that the petitioner herein has filed Regular Second Appeal No.2051 of 2012 before this Court and same came to be dismissed on 03^rd July, 2013 and same has reached finality and therefore, I do not find any merit in the arguments advanced by the learned counsel appearing for the petitioner regarding Section 47 of Code of Civil Procedure as well

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as urging grounds based on subsequent events. That apart, the brother of the petitioner herein-M.P.Lathesh, has filed Regular Second Appeal No.795 of 2009 against the judgment and decree dated 02^nd January, 2009 passed in Regular Appeal No.11 of 2008 on the file of the Civil Judge (Sr. Dn.), Chikkamagalur confirming the judgment and decree dated 11^th October, 1995 in Original Suit No.573 of 1992 on the file of the Principal Munsiff and JMFC Court, Chikkamagalur and this Court at paragraph 6 of the judgment has observed as under:

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“ 6. Even though it is contended that the appellant herein has objected to the schedule, the same can only be found in a vague reference to the contentions in the HRC proceedings. No evidence of any substantial nature was lead before the HRC Court in order to dispute the dimensions of the property. Merely, disputing the dimension without any corroborative evidence, would not justify stand the appellant to contend that there was a dispute raised with regard the dimensions the property. The Executing Court while considering the same has rightly come to the conclusion in view the of the eviction order being passed and the subsequent undertaking given by the judgment debtor before this Hon’ble Court, no ground can raised against the same. The objector has made this application only to willfully defeat the

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judgment and decree in favour of the respondent. The HRC proceedings were filed in the year 1992. Even after almost 20 years the litigation still continues. There is no legal right the appellant that has been infringed which requires adjudication. play to defeat lawfully obtained decree.”

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The application filed by the objector is for identification of property under Order XXI Rule 35 claiming to be the purchaser of the portion of the schedule property from the tenant of the decree holder. Firstly, the petitioner herein has to establish his right over the suit schedule property and that apart, even if the petitioner herein is held to be a bona fide purchaser of the suit schedule property, he cannot maintain application under Order XXI Rule 97 of Code of Civil Procedure in view of the law declared by the Hon'ble Apex Court recently in the case of SRIRAM HOUSING FINANCE AND INVESTMENT INDIA LIMITED v. OMESH MISHRA MEMORAIAL CHARITABLE TRUST reported in 2022 LIVELAW (SC) 565 (in Civil Appeal No.4649 of 2022 disposed of on 06^th July, 2022). At this juncture, it is relevant to cite the judgment of the Hon'ble Apex Court in the case of

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NOORDUDDIN v. DR. K.L. ANAND reported in (1995)1 SCC 242 wherein at paragraph 8 of the judgment, it is observed thus:

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“8. Thus, the scheme of the Code clearly adumbrates that when an application has been made under Order 21, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or Interest in the immovable property and an order in that behalf be made. The determination shall be conclusive between the parties as if it was a decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. It has to be remembered that preceding Civil Procedure Code Amendment Act, 1976, right of suit under Order 21, Rule 103 of 1908 Code was available which has been now taken away. By necessary implication, the legislature relegated the parties to an adjudication of right, title or interest in the immovable property under execution and finality has been accorded to it. Thus, the scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution.”

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On perusal of the aforementioned dictum of the

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Hon'ble Apex Court and applying the same to the facts of the case on hand, since the petitioner herein has suffered an order by this Court in MFA No.5894 of 2013 disposed of on 03^rd September, 2014, which came to be confirmed by the Hon'ble Apex Court in SLP(C) No.29541 of 2014 by order dated 17^th November, 2014 and also in Regular Second Appeal No.2051 of 2012 decided on 03^rd July, 2013, the petitioner herein has, with dubious intention to defeat the fruits of the decree, has filed application under Order XXI Rule 35(1) and (3) of Code of Civil Procedure seeking identification and demarcation of the petition schedule property and same has been rightly dismissed by the Executing Court. In that view of the matter, though the learned counsel appearing for the petitioner relied upon the judgments of the Hon'ble Apex Court mentioned above relating to Section 47 and 115 of Code of Civil Procedure, as well as, Order VII Rule 3 of Code of Civil procedure, the same are not applicable to be factual aspects of the present case in which the decree holder sought to execute the decree for eviction of the judgment debtor/tenant from the schedule property.

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For the reasons above, the present Revision Petition is not maintainable under Section 115 of Code of Civil Procedure. Therefore, the preliminary objections raised by the learned counsel appearing for the respondent/decree holder is sustained and the Revision is not maintainable, accordingly, revision petition stands dismissed.

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Sd/JUDGE

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lnn

M.P. Kaveesha v. Smt. Vasanthamala Dattatri

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M.P. Kaveesha v. Smt. Vasanthamala Dattatri

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