Dismissed

Smt Nagarathna v. Smt Alamelu Thatachar

Karnataka HC6 Feb 2023RSA/53/2023

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed a Regular Second Appeal seeking adjudication of property rights and possession. The court held the appeal was an abuse of process due to non-production of original title documents, denying the wife of the judgment debtor independent rights despite a contrary decree upheld by higher forums.

What did the court decide?

The appeal is dismissed with exemplary costs of Rs.1,00,000/-, of which Rs.75,000/- payable to the decree holder and Rs.25,000/- to the State.

Smt Nagarathna Vs Smt Alamelu Thatachar — Property and Title | Karnataka HC (2023)

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RSA No. 53 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO.53 OF 2023 (POS)

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BETWEEN:

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SMT. NAGARATHNA D/O. LATE KODE GANGADHARSA, W/O. HANUMANTHSA AGED ABOUT 64 YEARS, RESIDING AT NO.697 AGRAHARA LAYOUT, JAKKUR POST, YALAHANKA HOBLI, BENGALURU.-560 064.

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…APPELLANT

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(BY SRI. ABHINAY Y.T., ADVOCATE)

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AND:

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SMT. ALAMELU THATACHAR Digitally signed by SHARANYA T D/O. THATACHAR Location: HIGH AGED ABOUT 74 YEARS, COURT OFKARNATAKA RESIDING AT NO.312, 4^TH FLOOR, 1^ST CROSS, 2^ND MAIN ROAD, D.S. MAX SUNSHINE, VASANTHAVALLABHA NAGAR, KOTHANUR MAIN J.P.NAGAR, VIIth STAGE, BENGALURU-560 076.

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SRI.H.N.HANUMANTHSA S/O. NARAYANSA AGED ABOUT 72 YEARS, R/AT NO.409, 16^TH CROSS ROAD, AGRAHARA LAYOUT,

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RSA No. 53 of 2023

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JAKKUR POST, YALAHANKA HOBLI, BENGALURU-560 064.

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…RESPONDENTS

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(BY SRI MAHABALESHWARA RAO K.N., ADVOCATEN FOR C/R1)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 03.12.2022 PASSED IN R.A.No.113/2022 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE APPEAL FILED AGAINST THE ORDER DATED 26.08.2022 PASSED ON I.A NO.1 IN EX.NO.18/2018 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE BENGALURU RURAL DISTRICT BENGALURU, REJECTING THE IA.NO.1 FILED UNDER ORDER XXI RULE 97 TO 99 R/W SEC.151 OF CPC.

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

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JUDGMENT

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This matter is listed for admission and I have heard the learned counsel for the appellant and learned counsel for the respondents.

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The factual matrix of the case of the appellant herein is that she has filed an application under Order XXI, Rule 97 to 99 read with Section 151 of C.P.C. praying the Court to adjudicate her right and possession over the execution petition schedule property. In support of her contention, she has filed an affidavit claiming that she has been in possession of execution petition schedule property since, 1983. It is also her

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RSA No. 53 of 2023

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claim that, she has constructed house in the said property and she is residing in the said property along with family members. She has acquired the said property by way of GPA from one Kamala and she also executed an Affidavit confirming handing over of possession and given no objection to transfer the khatha and other records in her name and based on the said document, she has applied for transfer. It is her contention that very recently, she came to know about the fact that respondent No.1 had obtained decree against that property in O.S.No.684/2004 for possession against the judgment debtor and filed execution petition to take possession of the schedule property. It is contended that the decree holder obtained the decree behind her back, knowing fully well that she is in possession of the execution petition schedule property. The decree holder created the document and misguided the Court and obtained the decree. Hence, her right has to be adjudicated.

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The decree holder also filed objection contending

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that the application is not maintainable and the assertion of the objector that she has acquired the above property by way of GPA from one Kamala and she also executed an affidavit

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RSA No. 53 of 2023

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confirming handing over of property and no objection to transfer khatha in her name are all denied. She has contended that the GPA, affidavit and hakku patra produced by the objector are created with a motive only to help the judgment debtor and those documents are created. It is also contended that the judgment debtor is none other than the husband of this objector and the decree which was passed against him was taken in appeal which was numbered as R.A.No.297/2011 and the same was dismissed.

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Being aggrieved by the said judgment and decree passed in regular appeal, the judgment debtor has preferred the appeal in R.S.A.No.922/2015 and the same also came to be dismissed. After the dismissal of the said appeal, he has approached the Supreme Court and the Supreme Court also dismissed the S.L.P and when the execution is filed by the decree holder with an intention to defeat the fruits of the decree, an application is filed.

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Based on the pleadings of the parties, the Executing

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Court framed the issue whether the applicant-objector has any independent right, title and possession over the execution

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RSA No. 53 of 2023

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petition schedule property to cause obstruction or to show resistance to the execution of the subject decree for declaration and possession.

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The objector was also examined before the Executing Court and after considering both oral and documentary evidence placed on record, the objector’s application was rejected with cost of Rs.3,000/-. Being aggrieved by the rejection of the objector’s application, an appeal is filed and the same is numbered as R.A.No.113/2022 and the First Appellate Court also, on appreciation of both oral and documentary evidence placed on record, dismissed the appeal and also I.A. filed before the Court seeking production of some of the documents with cost of Rs.3,000/-. Hence, the second appeal is filed before this Court.

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Learned counsel appearing for the appellant would vehemently contend that both the Courts failed to take note of the sale agreement as well as the power of attorney executed in favour of the objector and erroneously proceeded to pass an order rejecting the objector’s application. The counsel would vehemently contend that both the Courts are not justified in

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dismissing the claim of the appellant with respect to the property in question on the basis of the sale agreement and GPA executed by one Smt. Kamala in favour of the appellant and failed to take note of the fact that, even the objector is in possession of the property and in order to substantiate her claim also, she has produced the document before the Trial Court as well as the First Appellate Court and the application and the documents are also not considered properly and hence, it requires interference of this Court.

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Per contra, learned counsel for the caveatorrespondent No.1 brought to notice of this Court in his argument that this appellant-objector is none other than the wife of judgment debtor and judgment debtor has suffered the decree and an appeal was filed and the same was dismissed and thereafter, R.S.A. was filed and the same was also dismissed and against the said order, SLP was filed and the same was dismissed. After the dismissal of the appeal, he had set up his wife claiming that there was a sale agreement and also power of attorney and those documents are not placed before the Court and only an attempt is made before the First Appellate Court to produce the hakku patra of Smt. Kamala and the same

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RSA No. 53 of 2023

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is a photo copy. Hence, it is clear that these documents are created. These are the material which has been considered by the Trial Court as well as the First Appellate Court and rightly dismissed the appeal confirming the judgment of the Trial Court.

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Learned counsel for the caveator-respondent No.1 would vehemently contend that it is nothing but abuse of Court process and decree holder is trying to get possession from the year 2004 and it is almost a two decade litigation based on the frivolous material on record which is also not placed before the Court. Hence, the same has to be dismissed with exemplary cost.

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Having heard the respective counsel and also on perusal of the material available on record, learned counsel for the caveator-respondent No.1 has placed the copy of the judgment and decree passed in O.S.No.684/2004, wherein a decree is passed in favour of the plaintiff in the said suit that plaintiff is the absolute owner of the suit schedule property and further directed the defendant, who is none other than the husband of the present objector to vacate and deliver the

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RSA No. 53 of 2023

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vacant possession of the suit schedule property to the plaintiff within six months from the date of the order. It is also an undisputed fact that the said order was assailed before the First Appellate Court, this Court and thereafter before the Apex Court and in all the Courts, the judgment debtor has suffered the decree against him. It has also emerged during the course of evidence before the Executing Court that, she is the wife of the defendant/judgment debtor in execution petition and an attempt is also made to show only the name of her father and not shown the name of her husband. But, during the course of evidence, she has stated that she is staying along with the judgment debtor and both the Courts have taken note of the said fact into consideration.

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It is also important to note that the claim made by the objector is that, there was a sale agreement between the original owner Smt. Kamala and power of attorney was also executed in her favour but, she claims right based on the alleged sale agreement. With regard to the title is concerned, no document is placed before the Trial Court i.e., hakku patra of Smt. Kamala. No doubt, an attempt was made to produce the same before the First Appellate Court, photo copy of hakku

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patra is produced and not the original. If really, the objector has entered into a sale agreement, what prevented her from producing the original document of Smt.Kamala, no explanation on her part and all the material clearly disclose that, as rightly pointed by the learned counsel for the caveator-respondent No.1, it is nothing but abuse of process. When the husband of the objector has suffered decree throughout from the Trial Court to Supreme Court, the wife, who is the objector claimed the right based on the alleged sale agreement and also filed an objector’s application and the Trial Court rightly dismissed the same imposing cost of Rs.3,000/-. The First Appellate Court also, confirmed the order of the Executing Court imposing the cost of Rs.3,000/- and inspite of the same, the appellant, who is the objector has approached this Court and hence, this Court has to take note of the manner in which the proceedings was conducted before the Trial Court, First Appellate Court and this Court and when the husband has suffered the decree from the Trial Court to Supreme Court, the judgment debtor has set up his wife claiming that she is having agreement of sale and power of attorney.

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RSA No. 53 of 2023

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It is the main contention of the learned counsel appearing for the appellant/objector that the power of attorney was not considered. When the very execution of the sale agreement and power of attorney is disputed and when the objector claimed that there was hakku patra in favour of her vendor Smt. Kamala, the same is not placed before the Court, inspite of sufficient opportunity being provided and though an attempt is made to produce the same, only photo copy is produced before the Appellate Court. If really, she has entered into the sale agreement with Smt. Kamala, who is the owner of the property, ought to have produced the same and only photo copy is produced and based on the said photo copy, right cannot be decided. Hence, I do not find any ground to admit the second appeal and frame substantial question of law invoking Section 100 of C.P.C. and it is nothing but an abuse of process as contended by the learned counsel for the caveatorrespondent No.1 and the appeal shall be dismissed with exemplary cost since, the decree holder from the last two decades making an effort to get the possession and the appellant, who is none other than the wife of judgment debtor

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RSA No. 53 of 2023

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based on created document coming in the way of getting the fruit of the decree of the decree holder.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The appeal is dismissed with cost of Rs.1,00,000/- payable at Registry within two weeks.

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(ii) Out of the amount of Rs.1,00,000/-, an amount of Rs.75,000/- is payable to the decree holder and the remaining amount of Rs.25,000/- shall vest with the State.

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Sd/JUDGE

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List No.: 1 Sl No.: 48

Smt Nagarathna v. Smt Alamelu Thatachar

Case brief

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Smt Nagarathna v. Smt Alamelu Thatachar

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