Dismissed

Smt. Subbalakshmamma v. Smt. H. Girijamba

Karnataka HC5 Apr 2023CRP/204/2021

Case brief

AI extract

What is this about?

Criminal revision petition under Section 115 CPC challenging rejection of application to bar plaint as barred by Order XXI CPC. Court held separate proceedings on partition and obstruction decree executability and transferred for consolidated trial avoiding conflict of decisions.

What did the court decide?

Disposal of both proceedings by Single Senior Civil Judge with direction to decide obstruction application first and within one year.

Smt. Subbalakshmamma Vs Smt. H. Girijamba — Property and Title | Karnataka HC (2023)

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1 - CRP No. 204 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF APRIL, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ CIVIL REVISION PETITION NO. 204 OF 2021 (IO)

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BETWEEN:

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SMT. SUBBALAKSHMAMMA W/O. LATE MUNISONNAPPA, AGED ABOUT 69 YEARS

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SMT. L.M. SUJATA D/O. LATE MUNISONNAPPA, AGED ABOUT 54 YEARS

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SRI. L.M. VIJAYENDRA KUMAR S/O LATE MUNISONNAPPA AGED ABOUT 52 YEARS

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SRI. L.M. LOKESH S/O. LATE MUNISONNAPPA, AGED ABOUT 50 YEARS 47, TUKE GROVE, WAKEFIELD, UNITED KINGDOM, WF 1 4 SL, REPRESENTED BY HIS SPECIAL POWER OF ATTORNEY HOLDER, SRI VIJAYENDRA KUMAR L.M., S/O LATE MUNISONNAPPA AGED ABOUT 51 YEARS, RESIDING AT KASABA HOBLI, HOSKOTE TALUK, BENGALURU-571 440.

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SRI. L.M. PRADEEP KUMAR S/O. LATE MUNISONNAPPA, AGED ABOUT 48 YEARS,

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PETITIONERS 1, 2, 3 AND 5 ARE R/AT LOKKANDAHALLY VILLAGE, KASABA HOBLI, HOSKOTE TALUK, BENGALURU-571 440.

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…PETITIONERS

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CRP No. 204 of 2021

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(BY SRI. R.B. SADASIVAPPA, ADVOCATE FOR SRI. CHANDRASHEKAR PATIL, ADVOCATE)

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AND:

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SMT. H. GIRIJAMBA W/O LATE RAMAPRASADA, D/O LATE H. NANJUNDAIAH, AGED ABOUT 72 YEARS, R/AT NO. 283, 1^ST FLOOR, 3^RD AVENUE, 3^RD MAIN, TEACHERS COLONY, KORAMANGALA 3^RD BLOCK EAST, BENGALURU-560 034.

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SMT. H.N. SAVITHRAMMA @ SUNDARAMMA W/O LATE M.S. SUBBA RAO, D/O LATE H. NANJUNDAIAH, AGED ABOUT 80 YEARS, R/AT NO.283, 2^ND FLOOR, 3^RD AVENUE, 3^RD MAIN, TEACHERS COLONY, KORAMANGALA, 3^RD BLOCK EAST, BENGALURU-560 034.

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SRI. H.N. SAROJAMMA W/O. SRI. KRISHNAMURTHY, D/O. LATE H. NANJUNDAIAH, AGED ABOUT 78 YEARS, RESIDENT OF GANDHI CIRCLE, VARTHUR, BENGALURU-560 087.

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SMT. H.N. VIJAYAMBA W/O. LATE GOPALA KRISHNA, D/O. LATE H. NANJUNDAIAH, AGED ABOUT 76 YEARS, R/AT NO.283, GROUND FLOOR, 3^RD AVENUE, 3^RD MAIN, TEACHERS COLONY, KORAMANGALA, 3^RD BLOCK EAST, BENGALURU-560034.

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SMT. H.N. MANJULA W/O. PARASHURAMA MURTHY, D/O. LATE H. NANJUNDAIAH, AGED ABOUT 61 YEARS, C/O. SRI. H.N. PUTTANNA,

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CRP No. 204 of 2021

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R/AT NO.7/21, 1^ST FLOOR, 4^TH CROSS, 5^TH MAIN, BEHIND BSV TEMPLE, BSK 3^RD STAGE, HOSKEREHALLI, BENGALURU-560 085.

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SMT. SHANTA W/O. LATE H. NAGABHUSHAN RAO, AGED ABOUT 78 YEARS, R/AT NO.7/21, 1^ST FLOOR, 4^TH CROSS, 5^TH MAIN, BEHIND BSV TEMPLE BSK 3^RD STAGE, HOSKEREHALLI, BENGALURU-560 085

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SINCE DEAD REP. BY HER LEGAL REPRESENTATIVES RESPONDENT NOS.7 TO 10

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(CAUSE TITLE IS AMENDED VIDE ORDER DATED 26.11.2021)

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SRI. H.N. SHIVKUMAR S/O. LATE H. NAGABHUSHAN RAO, AGED ABOUT 56 YEARS, R/AT NO.7/21, 1^ST FLOOR, 4^TH CROSS, 5^TH MAIN, BEHIND BSV TEMPLE, BSK 3^RD STAGE, HOSKEREHALLI, BENGALURU-560 085.

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SRI. H.N. CHANDRASHEKAR S/O. LATE H. NAGABHUSHAN RAO, AGED ABOUT 52 YEARS, R/AT NO.7/21, 1^ST FLOOR, 4^TH CROSS, 5^TH MAIN, BEHIND BSV TEMPLE, BSK 3^RD STAGE, HOSKEREHALLI, BENGALURU-560 085.

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SRI. H.N. PUTTANNA S/O. LATE H. NANJUNDAIAH, AGED ABOUT 74 YEARS, R/AT NO.7/21, 1^ST FLOOR, 4^TH CROSS, 5^TH MAIN,

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CRP No. 204 of 2021

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BEHIND BSV TEMPLE, BSK 3^RD STAGE, HOSKEREHALLI, BENGALURU-560 085.

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SRI. H.N. SRIKANTA S/O. LATE H. NANJUNDAIAH, AGED ABOUT 66 YEARS, R/AT NO.7/21, 1^ST FLOOR, 4^TH CROSS, 5^TH MAIN, BEHIND BSV TEMPLE, BSK 3^RD STAGE, HOSKEREHALLI, BENGALURU-560 085.

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SRI. R. MUNISHAMAPPA S/O. LATE MUNISHAMAPPA, AGED ABOUT 73 YEARS, R/AT NO.73, SY. NO.21/P1, DYAVARAHALLI GATE, KUNDANA HOBLI, JALIGE POST, DEVANAHALLI TALUK, BENGALURU-562 110.

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(BY SRI. JAYAKUMAR S. PATIL, SENIOR COUNSEL FOR SRI. UMASHANKAR L., ADVOCATE FOR RESPONDENT NOS.1 TO 5;

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SRI. RAGHAVENDRA V., ADVOCATE FOR RESPONDENT NOS.7 TO 10; SRI. K. VARAPRASAD, ADVOCATE FOR RESPONDENT NO.11;

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VIDE ORDER DATED 26.11.2021 RESPONDENT NOS.7 TO 10 ARE TREATED AS THE LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.6)

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THIS CRP IS FILED UNDER SECTION 115 OF THE CODE OF CIVIL PROCEDURE, 1908 AGAINST THE ORDER DATED 23.04.2021 PASSED ON I.A No.9 IN O.S.No.101/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., DEVANAHALLI, REJECTING THE I.A No.9 FILED UNDER ORDER VII RULE 11(d) READ WITH SECTION 151 OF CPC FOR REJECTION OF PLAINT.

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CRP No. 204 of 2021

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The legal representatives of the deceased defendant No.1 in O.S. No.101/2015 on the file of the Senior Civil Judge and JMFC., Devanahalli, (henceforth referred to as ‘the Trial Court’) have filed this revision petition challenging an Order dated 23.04.2021 passed therein by which an application (I.A. No.9) filed by them under Order VII Rule 11(d) read with Section 151 of the CPC., to reject the plaint as barred by law in view of Order XXI Rules 97 to 101 of the CPC., was rejected.

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The parties shall henceforth be referred to as they were arrayed before the Trial Court. The petitioners were defendant Nos.1(a) to 1(e) while respondent Nos.1 to 5 were the plaintiff Nos.1 to 5 respectively and respondent No.6 (since deceased and represented by her legal representatives) was arrayed as defendant No.2 and respondent Nos.7 to 11 were defendant Nos.3 to 7 respectively before the Trial Court.

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The facts in a nut shell are that Sri Munisonnappa, the husband of defendant No.1(a) and father of defendant Nos.1(b) to 1(e), entered into an agreement of sale dated

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02.01.1995 with Sri H. Nanjundaiah and his sons in respect of a an agricultural land bearing Sy No.21 of Dyavarahalli village, Kundana hobli, Devanahalli Taluk, Bengaluru Rural District measuring an extent of 10 acres (henceforth referred to as ‘the suit property’). It is stated that subsequently, Sri H. Nanjundaiah sold the suit property in favour of Sri R. Munishamappa under two registered sale deeds dated 11.01.1996.

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A suit in O.S. No.1422/2006 (old O.S. No.504/1996) for specific performance of agreement of sale dated 02.01.1995 was filed by Sri Munisonnappa, the defendant No.1 in O.S.No.101/2015 (henceforth referred to as the 'subject suit') before the Civil Judge (Sr. Dn.) and JMFC., Devanahalli. The said suit after contest was decreed on 21.11.2006 and the said Sri H. Nanjundaiah and his sons / defendant Nos.1 to 4 therein were directed to convey the suit property to Sri S. Munisonnappa. This decree was assailed by Sri R. Munishamappa/defendant No.5 a subsequent purchaser of the suit property in RFA No.93/2007 and sons of Sri H. Nanjundaiah/defendant Nos.2 to 4 in O.S. No.1422/2006 in RFA No.47/2007 before this Court.

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Both the said first appeals were dismissed in terms of a Judgment of this Court dated 05.03.2013. Against the said judgment, Sri Munishamappa, the subsequent purchaser filed R.P. No.278/2013 which was dismissed in terms of the order dated 05.08.2013. Thereafter, he filed S.L.P (C).CC No.20677/2013 before the Hon’ble Supreme Court which was dismissed in terms of the Order dated 14.02.2014.

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The daughters of Sri H. Nanjundaiah also challenged the said Judgment and decree dated 05.03.2013 passed by this Court in RFA No.93/2007 c/w RFA No.47/2007 and the order dated 05.08.2013 passed in R.P. No.278/2013 before the Hon'ble Supreme Court in SLP(C).CC Nos.1786317865/2014, which were also dismissed as withdrawn in terms of the Order dated 17.11.2014. However, leave was granted to them to take steps in accordance with the provisions of law before the appropriate Forum.

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Since the decree for specific performance granted in favour of Sri Munisonnappa became enforceable, execution proceedings in Ex. No.25/2014 were initiated before the Senior Civil Judge and JMFC., Devanahalli (for brevity, the ‘Executing

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Court’). When the proceedings in execution petition had reached the stage of executing a deed of absolute sale, the daughters of Sri H. Nanjundaiah filed an application under Order XXI Rules 97 to 105 read with Section 151 of the CPC contending that the suit property was earlier endowed to the village office and that their father Sri H. Nanjundaiah and their brothers/sons of Sri Nanjundaiah were tenants under the Jodidars, namely, Sri Y.V. Vasudeva Sasthri and his father Sri Venkataramana Sasthri and that after the promulgation of the Karnataka (Personal and Miscellaneous Inams) Abolition Act, 1954, occupancy rights were granted in favour of their father. They also contended that their father and their brothers had executed a sale agreement dated 02.01.1995 in favour of Sri Munisonnappa in respect of the suit property without their knowledge and consent. Therefore, they contended that they too had undivided right, title and interest in the suit property and the same could not have been sold singly by their father and prayed the Executing Court to hold a detailed enquiry on the obstruction application and pending such enquiry, not to execute the preliminary decree passed by the Trial Court in O.S. No.1422/2006. Following this application, the daughters

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of Sri Nanjundaiah filed a suit in O.S. No.101/2015 for partition and separate possession of their 1/8^th share in the suit schedule property and for permanent injunction before the Trial Court. The legal representatives of the deceased Sri Munisonnappa who was the decree holder in O.S. No. 1422/2006 filed an application (I.A. No.9) under Order VII Rule 11(d) read with Section 151 of the CPC to reject the plaint as barred by law contending that an application under Order XXI Rules 97 to 105 of the CPC was also filed by the plaintiffs in Ex. No.25/2014 before the Executing Court and hence, the subsequent suit in O.S. No.101/2015 filed by the plaintiffs was barred under Order XXI Rule 101 of the CPC.

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This application was contested by the plaintiffs who contended that a relief of declaration of their right, title and interest in respect of the suit property and consequent partition cannot be granted in Ex. No.25/2014. They contended that since their claim for partition was pending consideration, they filed an application under Order XXI Rules 97 to 105 read with Section 151 of the CPC., in Ex. No.25/2014 to avoid conveyance of the suit property in favour of the decree holder

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in O.S. No.1422/2006 and to avoid further multiplicity of proceedings.

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The Trial Court after considering the material on record as well as the contentions of learned counsel for the plaintiffs, learned counsel for defendant Nos.1 (a) to 1(c) and learned counsel for defendant No.7 rejected the application – I.A. No.19 in terms of the order impugned.

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Being aggrieved by the said order, the present revision petition is filed.

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Learned counsel for defendant Nos.1(a) to 1(e) / petitioners herein submitted that when once the plaintiffs are before the Executing Court in Ex. No.25/2014, then the suit in O.S. No.101/2015 cannot be proceeded with, as any order on an application under Order XXI Rule 97 to 105 of the CPC., in Ex.P. No.25/2014 results in a decree under Section 2(2) of the CPC. He also submits that when once the parties are before the Executing Court, in view of Section 47 and Order XXI Rule 101 of the CPC., a suit is not maintainable and therefore, the suit in O.S. No.101/2015 was liable to be terminated by rejecting the plaint.

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Per contra, the learned senior counsel representing the plaintiffs / respondent Nos.1 to 5 submitted that the suit for partition was filed after SLP(C).C.C Nos.17863-17865/2014 filed by the plaintiffs were dismissed as withdrawn in terms of the Order dated 17.11.2014 and the Hon’ble Supreme Court granted liberty to the plaintiffs to take steps in accordance with provisions of law before the appropriate Forum. He submits that it is after the subject suit was filed on 03.02.2015 that an application is filed under Order XXI Rules 97 to 105 of the CPC. on 24.06.2015 in Ex.No.25/2014, to pre-empt any conveyance in favour of defendant Nos.1(a) to (e). He further submits that the relief sought by the plaintiffs in O.S. No.101/2015 filed before the Trial Court cannot be granted by the Executing Court in Ex. No.25/2014 and therefore, both the proceedings are distinct and different and do not impinge on each other.

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I have considered the submissions made by the learned counsel for defendant Nos.1(a) to 1(e)/petitioners as well as the learned senior counsel for the plaintiffs/respondent Nos.1 to 5.

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The suit in O.S. No.101/2015 is filed for partition and separate possession of the plaintiffs’ 1/8^th share in the suit schedule property. The suit is filed on the premise that the suit property that was granted to Sri H. Nanjundaiah was not in his individual capacity but as the kartha of a joint family which comprised of the plaintiffs as well as Sri H. Nanjundaiah and their brothers. It is also claimed by the plaintiffs in the suit that the agreement to sell dated 02.01.1995 executed by their father and their brothers in respect of the suit schedule property was without their notice, knowledge and consent and that they too have an undivided right, title and interest in the suit property and therefore, alienation of the suit property by their father Sri H. Nanjundaiah and their brothers did not bind their right, title and interest in the suit property. The plaintiffs thereafter followed it up the suit by filing an application under Order XXI Rules 97 to 105 of CPC to obstruct the execution of the decree granted in O.S.No.1422/2006 in favour of Sri Munisonnappa. What was opposed in the execution petition - Ex.No.25/2014 was the executability of the decree qua the rights of the objectors/plaintiffs in the subject suit.

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A perusal of the application filed by the plaintiffs before the Executing Court shows that they prayed that an enquiry be held regarding their right and pending such enquiry, issue a direction not to execute the decree passed in O.S. No.1422/2006. It is rather axiomatic that the Executing Court could not have granted such a decree declaring the share of the plaintiffs. As rightly contended by the learned senior counsel for the plaintiffs, the suit in O.S. No.101/2015 and the application filed under Order XXI Rules 97 to 105 of the CPC in Execution petition - Ex. No.25/2014 served two different purposes. What was challenged in Ex. No.25/2014 was the executability of the decree against the interest of the plaintiffs while in O.S. No.101/2015, the plaintiffs sought for demarcation of their shares in the suit schedule property. Therefore, the plaint filed in O.S. No.101/2015 cannot be rejected on the grounds raised by the legal representatives of the deceased defendant No.1. The finding of the Trial Court in Ex.No.25/2014 or vice versa in O.S. No.101/2015 would ultimately decide the entitlement of the plaintiffs to their share in the suit schedule property. In order to avoid any conflict of decision in both the proceedings, i t is imperative that both the

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proceedings, namely, Ex. No.25/2014 filed by Sri Munisonnappa before the Senior Civil Judge and JMFC., Devanahalli and which is now pending trial before the I Additional Senior Civil Judge and JMFC., Devanahalli, and O.S. No.101/2015 filed by the daughters of Sri H. Nanjundaiah are transferred to the Court of Senior Civil Judge and JMFC., Devanahalli, which may first decide the application for obstruction filed by the plaintiffs under Order XXI Rules 97 to 105 of the CPC., in Ex. No.25/2014 and based on such decision, dispose off the suit in O.S. No.101/2015. The Executing Court shall take into account Section 13 of the Specific Relief Act, 1963 and if the application for obstruction is allowed, then it shall execute the decree dated 21.11.2006 passed by the Trial Court in O.S. No.1422/2006 to such extent possible.

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Hence, this petition lacks merit and is dismissed but subject to the observation made above. The Ex.No.25/2014 pending trial before the I Additional Senior Civil Judge and JMFC., Devanahalli, is ordered to be listed along with O.S. No.101/2015 pending trial before the Senior Civil Judge and JMFC., Devanahalli, which shall first decide the obstruction application filed by the obstructers in Ex. No.25/2014 and

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thereafter take up O.S. No.101/2015 for disposal. The Executing Court shall bear in mind Section 13 of the Specific Relief Act, 1963 and if the application for obstruction is allowed, then it shall execute the decree dated 21.11.2006 passed by the Trial Court in O.S. No.1422/2006 to the extent possible. In view of the fact that defendant Nos.1(a) to 1(e) and their predecessor have been fighting a long drawn battle from the year 1996, it is appropriate that the Court of Senior Civil Judge and JMFC., Devanahalli, is directed to dispose off both the proceedings before it within a period of one year from the date of receipt of a certified copy of this Order.

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Sd/JUDGE

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SMA

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List No.: 1 Sl No.: 22

Smt. Subbalakshmamma v. Smt. H. Girijamba

Case brief

What is this about?

What did the court decide?

Smt. Subbalakshmamma v. Smt. H. Girijamba

Case brief

What is this about?

What did the court decide?

What the court decided

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