Dismissed

Mr Vaseefulla v. Aftab Ahmed

Karnataka HC14 Oct 2022RFA/616/2022

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed an appeal against the rejection of an application objecting to the execution of a decree. The court held that the applicant, an employee of the judgment debtor, lacked personal interest and that his application was part of a strategy to delay execution, rendering the appeal unmindful.

What did the court decide?

The appeal is dismissed and the appellant is directed to pay costs of Rupees One Lakh to the decree holder.

Mr Vaseefulla Vs Aftab Ahmed — Execution and Attachment | Karnataka HC (2022)

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R.F.A No.616/2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF OCTOBER, 2022

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PRESENT

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THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR AND

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THE HON’BLE MRS. JUSTICE M.G. UMA

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REGULAR FIRST APPEAL No.616 OF 2022 (SP)

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BETWEEN :

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MR. VASEEFULLA S/O ABDUL RASHED AGED ABOUT 43 YEARS R/AT BYPASS, 1^ST CROSS ROAD NEW MANDLI SHIVAMOGGA-577 201 ... APPELLANT

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(BY SHRI. P. PRASANNA KUMAR, ADVOCATE FOR SHRI. K.P. BHUVAN, ADVOCATE)

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AND :

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AFTAB AHMED S/O LATHEEFUDEEN AGED ABOUT 40 YEARS R/AT 100 FEET ROAD NEW MANDLI

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SHIVAMOGGA-577 201

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MR. THYAGARAJA S/O LOOKUS AGED ABOUT 70 YEARS R/AT 3^RD CROSS, ASHOKNAGAR SHIVAMOGGA-577 201 ... RESPONDENTS

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(BY SHRI. H.S. PRASHANTH, ADVOCATE FOR R1; SHRI. D.J. SATHISH, ADVOCATE FOR R2)

. . . .

R.F.A No.616/2022

THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE ORDER DATED 05.02.2022 PASSED ON IA No.10 IN EX No.231/2019 ON THE FILE OF THE PRINICPAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA, REJECTING THE IA No.10 FILED UNDER ORDER 21 RULE 58 R/W SECTION 151 OF CPC

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THIS RFA, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 23.09.2022 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, P.S. DINESH KUMAR J. , PRONOUNCED THE FOLLOWING:-

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JUDGMENT

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This appeal is directed against order dated February 5, 2022 on I.A. No.10 in Execution No.231/2019 on the file of Principal Senior Civil Judge and CJM, Shimogga.

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For the sake of convenience, parties shall be referred to as per their status before the Trial Court.

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Heard Shri. P. Prasanna Kumar learned

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Advocate for the appellant, Shri.H.S.Prashanth, learned Advocate for first respondent and Shri. D.J. Sathish learned Advocate for second respondent.

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R.F.A No.616/2022

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First respondent-plaintiff filed a suit in O.S. No.135/2013 on the file of Principal Civil Judge, Senior Division, Shimogga for specific performance of an agreement to sell, dated March 25, 2010. The suit was decreed in part directing the defendant/second respondent to refund the advance sale consideration of Rs.90 Lakhs. First respondent filed Ex. No.231/2019 to execute the Judgment and decree. Appellant filed I.A. No.10 under Order XXI Rule 58 read with Section 151 of CPC and the same has been rejected.

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Shri. Prasanna Kumar, for the appellant

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urged following grounds in support of this appeal:

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the learned Judge of Executing Court has come to incorrect conclusion that appellant's application is in public interest. This finding is incorrect because the property sought to be attached and sold in execution is being used

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R.F.A No.616/2022

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as a play ground for the pupil studying in the school in which appellant's son is studying. If the property in question is sold to a third party in the execution, the School shall not have a play ground. Therefore, appellant and his son, who is a minor have personal interest in the property;

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appellant has produced Exs. P1 to P7 before the Executing Court in support of his application. The Executing Court has not considered their probative value. There is no discussion about those documents; and

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First Appellate Court is the final Court of fact. Therefore, a litigant is entitled to a full, fair and independent consideration of the evidence at appellate stage.

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He has placed reliance on Union of India

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Vs. K.V. Laxaman & Others.¹

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1 (2016)13 SCC 124 (paras 19 to 23)

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R.F.A No.616/2022

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7. Shri. Prashanth, for first

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respondent/decree holder, opposing the appeal submitted that first respondent had entered into an agreement in 2010 to purchase the suit property measuring 9 guntas of land for Rs.94 Lakhs and paid Rs.90 Lakhs as advance sale consideration. The suit property is a portion of the total land measuring 22 guntas in which a School is situated. The suit property is a vacant piece of land. The suit filed in the year 2013 has been partly decreed after contest on February 1, 2018. The said judgment and decree has attained finality. On January 12, 2021, the second respondent/JDR has also executed and Agreement to sell 11 guntas of land, wherein, the School is situated, in favour of a third party by name D.P. Chandrashekar.

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One Shri. Anantharama, the Secretary of

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the School had filed I.A. No.6 objecting the

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execution on the ground that pupils' interest would be adversely affected. The said application has been dismissed on October 4, 2021. Thereafter, Mrs. Umme Salma, the Head Mistress of the School filed I.A. No.12 on the very same ground and the said application has also been dismissed on February 5, 2022.

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Appellant, who is an employee under the second respondent had also filed I.A. No.10 on the very same ground. His application has also been dismissed on February 5, 2022. Subsequently, second respondent's wife has filed I.A. No.13 objecting the Execution on similar grounds.

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Thus, in substance, Shri. Prashanth argued that second respondent has been unable to execute the decree since 2019 because of the aforementioned frivolous applications and prayed for dismissal of this appeal.

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R.F.A No.616/2022

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We have carefully considered rival

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contentions and perused the records.

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Undisputed facts of the case are, the

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decree passed in the suit filed by the first respondent has attained finality. Second respondent is the Judgment debtor. The first application to object the execution was filed by the Secretary of the School. The second, by the Head Mistress of the school. The third, by an employee working under the JDR. First respondent's contention that appellant is an employee under Decree holder was refuted by the learned Advocate for the appellant. The learned Advocate for the respondent has made

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available a copy of appellant's deposition dated December 5, 2020, in C.C. No.2638/2019 on the file of First Additional Civil Judge and JMFC, Shimogga. In his cross-examination, appellant has

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R.F.A No.616/2022

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admitted that he was working under second respondent for about 10 to 12 years.

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Thus, this is a classic case in which a Decree holder is being prevented from executing the decree by repeated applications opposing the execution.

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The deposition before the Magistrate's Court clearly shows that appellant is Judgment Debtor's employee. The first ground urged on behalf of the appellant that he has personal interest in the land in question, is wholly untenable because he is a third party to the proceedings. The second ground that the learned Judge of the Executing Court has not considered Ex.P1 to P7 is also untenable because, the learned Judge has recorded cogent reasons while rejecting the application.

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It is trite that an Appellate Court is the

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final Court of fact and a litigant is entitled to a full,

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R.F.A No.616/2022

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fair and independent consideration of evidence at the Appellate stage. The facts of this case demonstrate the classic modus operandi employed by the JDR to defeat the execution of a decree which has attained finality. Therefore, the authority cited by the appellant does not support his case in view of his conduct at the instance of JDR. Such litigants need to be dealt with sternly.

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In view of the above, this appeal fails miserably and stands dismissed with cost of Rupees One Lakh payable by the appellant to the Decree holder, first respondent.

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Sd/JUDGE

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Sd/JUDGE

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SPS

Mr Vaseefulla v. Aftab Ahmed

Case brief

What is this about?

What did the court decide?

Mr Vaseefulla v. Aftab Ahmed

Case brief

What is this about?

What did the court decide?

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