Allowed

Sri Prasad G v. Vs Smt Naveena Kumari

Karnataka HC11 Sept 2024RFA/700/2017

Case brief

AI extract

What is this about?

This appeal challenges an order where the executing court dismissed an independent rights claim without holding the statutory enquiry required under Order XXI Rules 97-103 r/w Section 151 CPC. The High Court held that dismissal without enquiry was procedurally incorrect.

What did the court decide?

Impugned order dated 31.03.2017 set aside. Matter remitted to Trial Court for fresh disposal after holding due enquiry.

Sri Prasad G v Vs Smt Naveena Kumari — Execution and Attachment | Karnataka HC (2024)

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NC: 2024:KHC:37422 RFA No. 700 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL No.700 OF 2017 (SP)

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BETWEEN:

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SRI PRASAD G V S/O G MUNIYAPPA AGED ABOUT 52 YEARS, R/AT # 213, SAISADAN, RAMA FARM COMPOUND LAKSHMIPURA VIDYARANAYAPURA POST, BENGALURU -560097

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…APPELLANT

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(BY SRI HARISH H V, ADVOCATE)

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AND:

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Digitally signed by MALATESH K C

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Location: HIGH COURT OF KARNATAKA

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SMT NAVEENA KUMARI W/O SRI M NARAYANASWAMY AGED ABOUT 45 YEARS, R/O LAKSHMIPURA YESHWANTHAPUR HOBLI, CHIKKABANAVARA POST, BENGALURU NORTH TALUK, BENGALURU -560097

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ANJANEYA S/O LATE GIRIYAPPA AGED ABOUT 77 YEARS, R/AT NO.10/179, BLOCK 23, PAPER TOWN BHADRAVATHI -577 302

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MANJUNATH S/O LATE GIRIYAPPA AGED ABOUT 48 YEARS,

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NC: 2024:KHC:37422 RFA No. 700 of 2017

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R/AT ABBIGERE YESHWANTHPUR HOBLI, CHIKKABANAVARA POST, BENGALURU -560090

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…RESPONDENTS

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(BY SRI. S RANGASWAMY, ADVOCATE FOR C/R1; VIDE ORDER DATED 28.06.2021, R2 AND R3 ARE DELETED)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE ORDER DATED 31.03.2017 PASSED ON IA.NO.2 IN EX.NO.1589/2010 ON THE FILE OF THE XI ADDL CITY CIVIL & SESSIONS JUDGE AT BANGALORE REJECTING IA.2 FILED BY APPELLANT HEREIN UNDER ORDER 21 RULE 97 TO 103 OF CPC.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri Harish H.V. learned counsel for the appellant and Sri S.Rangaswamy, advocate for respondent No.1.

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Appeal is by the objector dismissing his application filed under Order XXI Rule 97 to 103 r/w Section 151 of the Code of Civil Procedure.

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Facts of the case in brief which are utmost necessary for

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disposal of the present appeal are as under:

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NC: 2024:KHC:37422 RFA No. 700 of 2017

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An execution petition came to be filed by the contesting respondent who was the decree holder-Smt.Naveena Kumari. She had filed a suit for specific performance of an agreement to sell executed by Sri Anjaneya and Sri Manjunath who were the defendants in the original suit.

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The decree passed in RFA No.72/2005 was sought to be executed by filing execution case in Execution No.1589/2010.

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Appellant herein filed an application under Order XXI Rule 97 to 103 r/w Section 151 of the Code of Civil Procedure claiming independent right over the property. Said application was opposed by the decree holder by filing detailed written objection.

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Learned Trial Judge instead of holding an enquiry and then decide the application on merits, heard the objections of the decree holder and dismissed the application of the objector. Said Order is under challenge in this appeal.

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Sri Harish, learned counsel for the appellant, reiterating

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the grounds urged in the appeal memorandum, contended that when an application filed under Order XXI Rule 97 to 103 r/w

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4 - NC: 2024:KHC:37422 RFA No. 700 of 2017

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Section 151 of the Code of Civil Procedure is filed, it is incumbent on the part of the Executing Court to hold an enquiry and then pass appropriate orders, in accordance with law. In the case hand, such a procedure has not been carried out by the learned Trial Judge resulting in miscarriage of justice besides being procedurally incorrect and sought for allowing the appeal.

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Per contra, Sri Rangaswamy, learned counsel for the contesting respondent supports the impugned Order stating that the applicant is no way connected with the property nor he has got any independent right over the property and therefore, dismissal of the application is just and proper.

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Having heard the parties, this Court perused the material on record, meticulously.

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On such perusal of the material on record, it is crystal clear that without holding an enquiry, learned Trial Judge in the Executing Court has heard the application on merits and dismissed the same, which is per se incorrect having regard to

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5 - NC: 2024:KHC:37422 RFA No. 700 of 2017

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the scope of the enquiry contemplated under Order XXI Rule 97

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to 103 r/w Section 151 of the Code of Civil Procedure.

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11. Accordingly, without expressing any opinion on the merits

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of the matter, the order impugned in this appeal needs to be set-aside.

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12. Accordingly, the following:

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ORDER

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(i) Appeal is allowed .

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(ii) The impugned Order dated 31.03.2017 passed in Execution Case No.1589/2010 is hereby set-aside .

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(iii) Matter is remitted to the Trial Court for fresh disposal, in accordance with law, after holding due enquiry.

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(iv) Parties shall appear before the Executing Court without further notice, on 30^th September 2024.

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(v) Copy of this Order shall be sent to the Trial Court along with Trial Court Records, forthwith.

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Sd/(V SRISHANANDA) JUDGE

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Kcm

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List No.: 1 Sl No.: 75

Sri Prasad G v. Vs Smt Naveena Kumari

Case brief

What is this about?

What did the court decide?

Sri Prasad G v. Vs Smt Naveena Kumari

Case brief

What is this about?

What did the court decide?

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