Dismissed

Afzal Pasha v. R a Subhan

Karnataka HC22 Nov 2023RFA/909/2008

Case brief

AI extract

What is this about?

The Appeal was dismissed. The Court held that the appellant, being a partner of the third judgment debtor who had suffered a decree in the underlying suit, did not possess an independent right to obstruct execution proceedings despite his claim of being a separate licensee.

What did the court decide?

Application under Order XXI Rule 97 CPC was rejected; appeal dismissed with costs of Rs. 10,000/- payable by appellant.

Afzal Pasha Vs R a Subhan — Execution and Attachment | Karnataka HC (2023)

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NC: 2023:KHC:42283 RFA No. 909 of 2008

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA

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REGULAR FIRST APPEAL No.909 OF 2008

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BETWEEN:

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AFZAL PASHA S/O AMEER BAIG AGED ABOUT 42 YERAS, PROPRIETOR, SHAMA BAG ENTERPRISES, NO.26 & 26B CORPORATION MARKET, S.C.ROAD, CROSS, BANGALORE 9.

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…APPELLANT

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(BY SRI. ANIL KUMAR A.S., ADVOCATE FOR SRI. C PARAMESWARAPPA., ADVOCATE)

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AND:

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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R A SUBHAN S/O RASOOL SAB SINCE DEAD REP BY LRS

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1(A) MRS. SHATAJ W/O NAWAB JAN D/O LATE R.A.SUBHAN AGED ABOUT 48 YEARS

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1(B) MR. SALAMATHULLA S/O LATE R.A.SUBHAN AGED ABOUT 46 YEARS MRS. AFSHAN TAJ

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1(C) W/O C.M. ANWAR PASHA S/O LATE R.A.SUBHAN AGED ABOUT 44 YEARS

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MRS. SHIRIN TAJ

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]][[[[[[1(D) W/O A.N.YADHWAD D/O LATE R.A.SUBHAN AGED ABOUT 43 YEARS

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MRS. PARVEEN TAJ

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W/O C.M. ADIL PASHA

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1(E) D/O LATE R.A.SUBHAN AGED ABOUT 41 YEARS

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HIDAYATHULLA

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S/O LATE R.A.SUBHAN

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1(F) AGED ABOUT 40 YEARS

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ALL ARE R/A D.NO.10 3^RD CROSS, 4^TH MAIN ROAD VENKATARAMAPURAM PALACE GUTTAHALLI BANGALORE-560003.

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THE COMMISSIONER BANGALORE MAHANAGARA PALIKE, N.R.SQUARE, BANGALORE 2.

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SRI D RAVI KUMAR AGED ABOUT 53 YEARS, S/O K.S.DEVARAJA REDDY R/AT NO.141, IST MAIN ROAD, RAMACHANDRAPURAM, BANGALORE 21.

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…RESPONDENTS

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(BY SRI. H P LEELADHAR & CO., ADVOCATE FOR R1 (A TO F) V/O DT.29/07/2008; NOTICE TO R2 TO R4 DISPENSED WITH)

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THIS REGULAR FIRST APPEAL IS FILED U/S 96 OF CODE OF CIVIL PROCEDURE AGAINST THE ORDER DATED 26.07.2008 PASSED ON IA.No.8 IN EX.No.1366/06 ON THE FILE OF THE IX ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE IA.No.8 FILED BY THE OBJECTOR-CUM APPLICANT/APPELLANT HEREIN UNDER ORDER XXI RULE 97 OF CPC FOR DETERMINATION OF HIS RIGHT OVER THE SCHEDULE PROPERTY AND ETC.,

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard Sri Anil Kumar A.S., counsel for appellant and Sri H.P.Leeladhar, counsel for respondent.

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The present appeal is directed against the Order passed on I.A.No.8 in Execution No.1366/2006 dated 26^th July 2008 on the file of the IX Additional City Civil and Sessions Judge, Bengaluru (CCH-5) whereby I.A.No.8 came to be rejected which is the application filed by the appellant resisting the execution of the decree passed in O.S.No.7620/1995 dated 18^th April 2006 on the file of the IX Additional City Civil Judge, Bengaluru (CCH-10).

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NC: 2023:KHC:42283 RFA No. 909 of 2008

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Facts in brief which are utmost necessary for disposal of the present appeal are as under:

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The first respondent in this Appeal viz., R.A.Subhan, filed a suit in O.S.No.7620/1995 against the Commissioner, Corporation of City of Bengaluru; Deputy Revenue Officer, K.R.Market and Sri D.Ravikumar, for the relief of declaration and direction. The suit, on contest, came to be decreed in part, as under:

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“The suit is hereby partly decreed with costs in favour of plaintiff and against the defendants, declaring that the plaintiff is the licensee of the suit schedule shops under the defendants Nos.1 and 2 and the licence granted by the defendant Nos.1 and 2 in favour of the defendant No.3 is null and void and not binding on the plaintiff and consequently directed the defendants to deliver the vacant possession of the suit schedule shops to the plaintiff within a period of three months from today.

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It is also further directed the defendant Nos.1 and 2 to collect the rent-cum-licence fee of the schedule shops from the plaintiff at the rate of Rs.30/- per month as per the orders of direction given by the Hon’ble High Court on I.A.No.3 filed in Writ Petition No.20815/1982 dated 20.09.1990.”

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The decree in O.S.No.7620/1995 was sought to be executed in Execution No.1366/2006. When the said execution

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petition was pending, present appellant filed I.A.No.8 as an objector under Order XXI Rule 97 of the Code of Civil Procedure praying to determine his right over the schedule property, contending that he is the licensee in respect of suit property, pursuant to allotment made to him and execution of deed of licence in his favour. As such, he is in actual physical possession and enjoyment of suit property.

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It is his contention that on 17.07.2006 when he went to his shop, he noticed a small piece of paper pasted on its door and on enquiry, came to know that as per the Order passed by this Court in W.P.No.20815/1982 and O.S.No.7620/1995, he has to vacate the shop. Immediately, objector filed a Writ Petition in No.9735/2006 and Bengaluru City Corporation was directed not to dispossess him. Decree holder is aware of such proceedings and decree holder in collusion with the officials of the Bengaluru Mahanagara Palike, kept quiet for some time and when objector again went near the shop on 20.03.2007, he was informed about pendency of the execution petition. Thereafter, he has filed I.A.No.8 in the Execution Petition No.1366/2006 resisting the execution of the decree.

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The decree holder resisted the said application by filing detailed written objection stating that the application is frivolous and vexatious in nature. He denied the allegations made in paragraphs 2 to 8 of the application.

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Decree holder maintained that the schedule property was allotted to the decree holder as a licensee and first judgment debtor namely the Commissioner, Corporation of City of Bengaluru, obtained an agreement from him and licence given to him is not cancelled or terminated, till today.

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He further contended that upto the end of 1995, he has paid licence fee/rent and after dismissal of Civil Petition No.317/1991 when decree holder had been to his native place, the officials of first and second judgment debtors with their henchmen threw out the belongings of the decree holder and locked the schedule property forcibly. It is his case that he lodged the complaint with police, but police did not receive the complaint.

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Decree holder also contended that even if the third judgment debtor is a licensee in respect of suit property, same is void ab initio in view of the fact that the first and second

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judgment debtors have no authority to allow the third judgment debtor to carry on the business as the right of decree holder is protected by judicial proceedings.

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The decree holder further contended that in O.S.No.7620/1995, the Trial Court, after considering the respective rights of the decree holder and judgment debtors, decreed the suit of the plaintiff for delivery of possession.

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He also contended that filing of W.P.No.9735/2006 is in active collusion of the objector with judgment debtors 1 and 2 and, decree holder was not made as a party to the said proceedings and therefore, it would not bind the rights of the decree holder and therefore, sought for dismissal of the petition.

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The learned Trial Judge, in view of the rival contentions, recorded the evidence of the parties on the application and heard the parties and raised the following points for determination:

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(i) Whether the application is maintainable?

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(ii) Whether the objector has right to continue in possession of the schedule property?

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(iii) To what order?

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On cumulative consideration of the material evidence on record placed by the parties, the learned Trial Judge rejected the application filed by the objector. The same is under challenge in this appeal on the following grounds:

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The Court has grossly erred in holding that the right to make an application under Order XXI Rule 97 of CPC is only on the holder of a decree or purchaser of immovable property sold in execution of a decree whenever he is resisted or obstructed. The Court below further erred in drawing conclusion that the obstructor has filed such an application without noticing the intent or purpose of Rule 97 or ignoring the same and that no person other than the decree holder of the purchaser in execution has the right to file an application under Order XXI Rule 97 of CPC. This finding of the Court below as regards the question of law is incorrect as per the view taken by the Hon’ble Supreme Court in the case reported in AIR 1998 SC 1827 where the Apex Court held that a third party in possession of a property claiming independent right as a tenant not party to a decree for possession of immovable property under execution could resist such decree by seeking adjudication of his objections under Order XXI Rule 97 of CPC. The said decision of the Apex Court is squarely applicable to the present case and the objector

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has placed reliance on the said decision and the Court below failed to appreciate the same and committed an apparent on the face of record.

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The Court below has grossly erred in not appreciating as to the fact that the appellant herein was the licensee in respect of the shop premises granted by the licensor i.e., the 2^nd respondent herein and that his possession in respect of the shop premises was lawful and that he was not claiming his right either under the judgment debtor or the decree holder and that he has not established his independent right conferred on him by virtue of license granted in his favour and as such the Court below ought to have held that the judgment and decree obtained by the decree holder therein without impleading the appellant herein was not executable and as such, ought to have allowed the application made under Order XXI Rule 97 of CPC.

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The Court below ought to have appreciated as to the fact that the license granted in favour of the appellant herein by the Bangalore Mahanagara Palike and 2^nd respondent herein was neither cancelled by the respondent No.2 BMP nor was called in question by any of the parties to the suit bearing O.S.No.7620/95 i.e., the 1^st respondent and 3^rd respondent herein and as such the Court below ought to have held that the appellant herein was in lawful possession of the premises in question and as such the judgment and decree in O.S.No.7620/95 was not enforceable against the appellant herein.

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NC: 2023:KHC:42283 RFA No. 909 of 2008

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The learned City Civil Judge ought to have appreciated as to the fact that the license was granted to the appellant herein during the pendency of the suit bearing O.S.No. 7620/95 and it was incumbent upon the respondent No.2, BMP to intimate the same to the Court and it was also the duty cast upon the decree holder/plaintiff, i.e., the respondent No.1 herein to implead the appellant herein as necessary party to adjudicate the real question in controversy, in the absence of which, the judgment and decree in O.S.No.7620/1995 does not bind on the appellant in any manner.

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The Court below ought to have appreciated as to the fact that based on the pleadings and the material placed on record, it was apparent that the plaintiff has colluded with the subordinates of the officials of the BMP which did not resist the suit bearing O.S.No.7620/95 and obtained a collusive decree.

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The Court below has attached much credence to the alleged Release Deed said to have been executed by the appellant and the releasee, the 3^rd respondent herein in the matter of releasing the rights conferred on the basis of the license granted by the respondent No.2, BMP and drawn conclusion that the appellant is claiming right under the judgment debtor. It is very relevant and pertinent to note that the terms of the license does not in any manner provide for parting with possession with 3^rd parties other than the licensee or to release/relinquish the rights under the license to any 3^rd parties who is not a party to the Deed of License and in that circumstances

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the Court below ought not to have placed reliance on the said alleged Deed of Release said to have been executed between the appellant and D.Ravikumar, the 3^rd respondent herein and that the Court below ought not to have held that the objector has stepped into the shoes of the judgment debtor.

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The Court below could not have appreciated the acts or deeds in respect of which there is a statutory and contractual bar i.e., parting with license and thereafter relinquishing his rights of license and ought not to have drawn conclusion that the appellant herein is claiming right under the judgment debtor based on an alleged act of relinquishment of right of license which is an un-doer in law. On the contrary, the Court below ought to have held that the appellant herein is the licensee under the BMP, the respondent No.2, in his own right and the said license was not called in question even till today and that the judgment and decree in O.S.No.7620/95 is not enforceable against the appellant herein.

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The Court below failed to appreciate the sworn testimony of P.W.1 and the documents filed and marked thereof establishing the fact of he being the licensee under BMP and further failed to give proper reason in the matter of correctness or otherwise of the license granted in favour of the appellant herein by the BMP, the respondent No.2 herein, in the absence of which the conclusion drawn by the Trial Court is erroneous and suffers from serious legal infirmities.”

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Learned counsel appearing for the appellant, reiterating the grounds urged in the appeal memorandum, contended that the appellant is possessing independent right as a licensee from Bengaluru City Corporation and therefore, he is in possession of the schedule property and said aspect of the matter has not been appreciated by the learned Trial Judge while dismissing I.A.No.8 and sought for allowing the appeal.

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Per contra, Sri H.P.Leeladhar, counsel representing the decree holder in Execution No.1366/2006 and first respondent in this appeal, contended that the material on record especially Exs.D.1 to D.4 which has been admitted by the appellant herein clearly establishes that the objector is a partner of third judgment debtor who has suffered decree and they were carrying on business of travel goods in schedule property. Therefore, appellant cannot now claim independent right and sought for dismissal of the appeal.

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He also argued that the decree passed against the judgment debtor has become final. Therefore, the third judgment debtor has now resisting decree through objector

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which cannot be countenanced and sought for dismissal of the appeal.

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In reply, Sri Anil Kumar, counsel for appellant contended that, in fact, a separate suit has been filed by the applicant herein in O.S.No.6784/2017 against Bruhath Bengaluru Mahanagara Palike; the Revenue Officer, Market West Zone, K.R.Market; Assistant Revenue Officer, Market West Zone, K.R.Market Building, and the said suit on contest, came to be decreed and therefore, the appeal needs to be allowed. He also relied on the judgment of the Apex Court in the case of Shreenath and another vs. Rajesh and others , reported in

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AIR 1998 SC 1827 wherein, it is held as under:

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“(B) Civil Procedure Code (5 of 1908), O.21 R.91Decree for immovable property-Execution-Third party in possession claiming independent right as tenant-Can object and get his claim adjudicated when sought to be dispossessed by decree holder-He need not wait until he is dispossessed.”

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In view of the rival contentions of the parties, perused the entire material on record meticulously. On such perusal of the material on record, the following points arise for consideration:

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(i) Whether the appellant has successfully established that he has independent right over the suit property to object the decree passed in O.S.No.7620/1995?

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(ii) Whether the impugned Order passed on I.A.No.8 in Execution No.1366/2006 is suffering from any legal infirmity or perversity and thus calls for interference?

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(iii) What Order?

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In the impugned Order, at paragraphs 10 and 11, learned Trial Judge has held as under:

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“10. The objector has claimed to be the licencee in respect of the schedule property independent of the 3^rd judgment debtor and he has given evidence to that effect. By denying so many suggestions tendered to him to the contra, no doubt, he has stuck to his stand. In particular, I find it necessary to mention his repeated assertion that he does not know who the 3^rd judgment debtor is. To obtain support his testimony, he has relied upon Ex.P.1, P2, P3 to P6, P7 to P18 and P19 which are a licence issued to him, document given by telephone exchange for taking connection, 4 vat receipts, 12 rent receipts and a document given by the 1^st judgment debtor. The specific defence raised by the

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NC: 2023:KHC:42283 RFA No. 909 of 2008

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decree holder to discredit the stand assumed by the objector is that in collusion with the judgment debtors, he was working under the 3^rd judgmentdebtor after he started business in travel goods. Of course, he has denied the said fact. In addition to it, he has also denied suggestions that he created Ex.P.1 joining hands with the judgment-debtors to nullify the decree to be obtained by decree-holder. Further, according to his defence, the 3^rd judgmentdebtor is doing business in the schedule property even today and the same is, of course, denied by AW.1. Hence, it is absolutely necessary to carefully scrutinize his evidence with reference to the crossexamination directed against him.

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11. At the threshold of the cross-examination itself, A.W.1 has categorically admitted that Ex.D1, D2, D3 and D4 bear his signatures as per Ex.D1(a) and (b), D2(a), D3(a) and D4(a) respectively. A perusal of Ex.D.1 to D4 would clearly point out that the objector had applied for grant of right to use the schedule property in 2003. Ex.D.2 is dated 19.08.2003. It contains list of documents appended to its original. Ex.D.3 and D4 are certified copy of two of them. A plaint reading of the same would disclose that he had entered into a partnership with the 3^rd judgment debtor. Further, Ex.D.4 which is a certified copy of his own affidavit throws ample light

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on the carrying on the business in travel goods with the 3^rd judgment debtor.”

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The material on record is re-appreciated by this Court in the light of the contentions urged on behalf of the appellant. On perusal of Exs.D.1 to D.4, it is crystal clear that the appellant was carrying on the business of travel goods along with third defendant as a partner.

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In fact, Ex.D.4 is the certified copy of the affidavit which

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has been relied upon by the learned Trial Judge in the impugned order to hold that the appellant did not possess any independent right, but he was claiming right along with third judgment debtor.

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It is settled principles of law and requires no emphasis that a party to a proceedings cannot approbate and reprobate with regard to the stand taken by him. No doubt, a defendant is permitted to take not only alternate pleas but also mutually contradictory pleas. But, in the case on hand, since the third defendant has suffered the decree whereunder the first respondent is entitled to enjoy fruits of the decree passed in O.S.No.7620/1995, which is sought to be executed in Execution

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No.1366/2006, it was incumbent on the part of the appellant to establish his independent right, if any, to object the decree.

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The material on record, especially, the documents referred to supra marked at Exs.D.1 to D.4 would clearly establish that appellant did not possess any independent right over the suit property. But he has been claiming under third defendant.

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If it is the case of the appellant that he is also a licensee with Bengaluru City Corporation, his remedy is to work out against the Corporation by filing an independent comprehensive suit. In this regard, learned counsel for the appellant brought to the notice of this Court that he has already filed such a suit which is decreed in his favour in O.S.No. 6784/2017.

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Admittedly, the decree holder is not a party to the said proceedings. The said suit came to be filed only for bare injunction suppressing the fact of his application vide I.A.No.8 being dismissed in Execution No.1366/2006 and pendency of present appeal. Said conduct of the appellant would speak volumes about his bonafides in approaching different Courts

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and somehow continuing to remain in possession of suit premises.

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The third defendant having suffered the decree, has not filed any appeal challenging the decree passed in O.S.No.7620/1995. Moreover, when the licence granted to the decree holder was sought to be cancelled by the Corporation authorities, he has approached this Court and in W.P.No. 20815/1982, there was a direction to the Corporation authorities to collect balance licence fee cum rent, if any, and continued licence. That matter, ultimately reached its finality and therefore, Corporation authorities were not supposed to cancel the licence of the decree holder and third defendant was carrying on the business in the suit property in the interregnum when the licence of decree holder was cancelled by the Corporation authorities. Since the right of the decree holder has reached its finality and when possession was not delivered, the decree holder was constrained to file O.S.No.7620/1995 which on contest, came to be decreed.

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Admittedly, the third defendant has also contested the suit in O.S.No.7620/1995 on merits and suffered the decree and did not chose to file any appeal.

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In the absence of any independent right possessed by the appellant, he cannot obstruct for the execution of decree that has been passed in O.S.No.7620/1995, especially, when appellant claims that he is the partner of third defendant who is the third judgment debtor in Execution No.1366/2006.

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At any rate, in the absence of any independent right being established by the appellant, he cannot and should not obstruct for the decree that has been passed in O.S.No.7620/1995.

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Therefore, dismissal of his application filed under Order XXI Rule 97 of Code of Civil Procedure vide I.A.No.8 in the impugned Order is perfectly justified. There cannot be any dispute with regard to principles enumerated in the case of Shreenath supra. But on facts, the said decision is not of much avail for appellant.

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Further, the decree obtained by the appellant in O.S.No.6784/2017 is only against Corporation authorities and not against the decree holder. Therefore, said decree would not enure to the benefit of the appellant in protecting the alleged possession over the suit property.

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Accordingly, this Court is of the considered opinion that the points 1 and 2 raised above are to be answered in the negative and accordingly they are answered.

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Regarding Point No.3: In view of the finding of this Court

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on point Nos.1 and 2 as above, the following:

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ORDER

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Appeal is meritless and is hereby dismissed with costs of Rs.10,000/- payable by the appellant to the respondent/decree holder.

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Sd/JUDGE

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List No.: 1 Sl No.: 42

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kcm

Afzal Pasha v. R a Subhan

Case brief

What is this about?

What did the court decide?

Afzal Pasha v. R a Subhan

Case brief

What is this about?

What did the court decide?

What the court decided

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