Dismissed

Sri Singaravelu @ v. Dhananjaya v Smt Geetha S Babu

Karnataka HC11 Mar 2024RSA/312/2024

Case brief

AI extract

What is this about?

Appellants claiming as legal representatives of a decree-defendant filed an Order 21 Rule 97 CPC application resisting execution of a final decree in a partition suit; executing and first appellate courts rejected it for want of independent right. The High Court found no substantial question of law and dismissed the second appeal, noting a comprehensive partition suit was pending.

What the court decided

AI extract

Sri Singaravelu @ v Dhananjaya Vs Smt Geetha S Babu — Partition | Karnataka HC (2024)

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NC: 2024:KHC:9915 RSA No. 312 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL

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REGULAR SECOND APPEAL NO. 312 OF 2024

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BETWEEN:

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SRI SINGARAVELU @ V.DHANANJAYA, S/O LATE S VENUGOPAL NAIDU, AGED ABOUT 47 YEARS,

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SRI V. SUBRAMANYA, S/O LATE S. VENUGOPAL NAIDU, AGED ABOUT 45 YEARS,

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SRI V. RAVI KUMAR, S/O LATE S. VENUGOPAL NAIDU, AGED ABOUT 43 YEARS,

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Digitally signed by SUMA B N Location: High Court of Karnataka

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SRI S MANJUNATH, S/O LATE SOMU, AGED ABOUT 32 YEARS,

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ALL ARE R/A DOOR NO.675, B.B. GARDEN ROAD, KHILLE MOHALLA, MYSORE-570 004.

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…APPELLANTS

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(BY SRI. MADHUKAR NADIG, ADVOCATE)

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NC: 2024:KHC:9915 RSA No. 312 of 2024

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AND:

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SMT. GEETHA S. BABU, D/O LATE M.B. GANGADHARA NAIDU, AGED ABOUT 52 YEARS,

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SMT LALITHA, D/O LATE M.B. GANGADHARA NAIDU, AGED ABOUT 50 YEARS,

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SRI G. MAHESH NAIDU, S/O LATE M.B. GANGADHARA NAIDU, AGED ABOUT 47 YEARS,

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SRI G DINESH NAIDU, S/O LATE M B GANGADHARA NAIDU, AGED ABOUT 45 YEARS,

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SRI YATHI RAJ, S/O B L BABU NAIDU, AGED ABOUT 67 YEARS

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RESPONDENTS NO.1 TO 5 ARE R/A NO.22, 9^TH MAIN, 5^TH BLOCK, JAYALAKSHMI PURAM, MYSORE-570 012.

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SMT RANGAMMA, W/O LATE VENKATESH NAIDU, D/O LATE BALA SUNDAR NAIDU, AGED ABOUT 60 YEARS,

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SMT PUSHPAVATHI, W/O LATE S VENUGOPAL NAIDU, AGED ABOUT 73 YEARS,

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RESPONDENTS NO.6 & 7 ARE R/A NO.675, B B GARDEN ROAD, KHILLE MOHALLA, MYSORE-570 004.

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…RESPONDENTS

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(BY SRI. MADHWA RAJ S.J., ADVOCATE FOR R1 TO R5)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 07.02.2024. PASSED IN RA NO.45/2023 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.12.2022 PASSED IN EX. NO.427/2016 ON THE FILE OF I/C. X ADDITIONAL CIVIL JUDGE AND JMFC, MYSURU, DISMISSING THE APPLICATION FILED U/O 21 RULE 97 OF CPC.

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

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JUDGMENT

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This appeal is by the appellants who claims to be the

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legal representatives of one deceased Venugopal Naidu aggrieved by the order dated 16.12.2022 passed in Ex.No.427/2016 on the file of X Additional Civil Judge and JMFC, Mysuru, (hereinafter referred to as 'Executing Court' for short), which was confirmed in judgment and order dated 07.02.2024 passed in R.A.No.45/2023 on the file of I Additional Senior Civil Judge and CJM, Mysuru

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NC: 2024:KHC:9915 RSA No. 312 of 2024

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(hereinafter referred to as 'First Appellate Court' for short).

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Brief facts of the case are that a suit in O.S.No.12/1976 was filed by one Venkata Lakshmamma also known as Bebamma-plaintiff against her two brothers Balasundara Naidu-defendant No.1 and Venugopala Naidudefendant No.2 and four sisters namely, (1)Nagamma, (2)Parvathamma, (3)Salamma and (4)Jayamma who are defendant Nos.3 to 6 respectively seeking partition and allotment of share in the schedule property namely, house property bearing Municipal door No.675, situated at B.B.Garden road, Khille Mohalla, Mysore. The said suit was decreed by the Executing Court by its judgment and decree dated 25.11.1982 granting 1/7^th share each in the schedule property to the parties. Aggrieved by the same, Balasundara Naidu and Venugopala Naidu who were the defendant Nos. 1 and 2 in the said suit filed regular appeal in R.A.No.33/1985. In the said appeal a cross-objection was also filed by Venkatalakshmamma-plaintiff by

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NC: 2024:KHC:9915 RSA No. 312 of 2024

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restricting share to 1/5^th each to the daughters excluding brothers. That by judgment and order dated 30.11.1985 the First Appellate Court dismissed the appeal and allowed the cross-objection filed by the plaintiff modifying the decree allotting share to the plaintiff and defendant Nos. 3 to 6 alone to the extent of 1/5^th share each and the decree passed by the Trial Court allotting 1/7^th share to the defendant Nos. 1 to 6 was set aside.

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Aggrieved by the same, legal representatives of defendant Nos.1 and 2 filed a regular second appeal in RSA No.411/1986. That the said appeal was dismissed by this Court vide order dated 31.07.1997 confirming the judgment and order passed by the First Appellate Court. A review petition was also filed by the legal representatives of defendant No.1-Late Balasundara Naidu in R.P.No.776/2013 before this Court. This Court by order dated 24.07.2017 rejected the said review petition on the count that the same was barred by limitation.

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NC: 2024:KHC:9915 RSA No. 312 of 2024

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In the meanwhile, plaintiff-Smt.

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Venkatalakshamma passed away. Certain persons namely, (1)G. Anusuya Naidu, (2) Geetha S. Babu, (3)Lalitha M, (4)G. Mahesh Naidu, (5) G. Dinesh Naidu and (6) Yathiraj claiming to be the legal representatives of original plaintiff- Smt.Venkatalakshmamma initiated the final decree proceedings in FDP No.16/2013 on the file of II Additional First Civil Judge, Mysuru. By order dated 14.06.2016 accepting the Commissioner report filed in the said proceedings, the FDP Court allowed the petition directing the property to be divided and shares to be allotted as per the Commissioner's report submitted thereunder.

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That an execution petition was subsequently initiated by the aforesaid persons claiming to be the legal representatives of the original plaintiff Smt. Venkatalakshmamma in Ex. P.No.427/2016. In the said Execution petition the appellants herein claiming to be the legal representatives of Venugopala Naidu-defendant No.2

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NC: 2024:KHC:9915 RSA No. 312 of 2024

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filed an application under order 21 Rule 97 of CPC as obstructers.

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The Executing Court by order dated 16.12.2022

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dismissed the said application filed by the appellants herein. Against which order the appellants preferred regular appeal in RA No.45/2023. Considering the grounds urged by the parties, First Appellate Court framed the following points for its consideration;

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"Point No.1: Whether the appellants have sufficient cause to make resistance or obstruction to possession of the execution schedule property in favour of the respondents?

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Point No.2: If yes, whether impugned order on I.A.No.II of the learned Trial Court dated 16.12.2022 passed in Ex.No.427/2016 suffers from infirmity?

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Point No.3: What order or decree?"

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Being aggrieved by the same, appellants are before this Court.

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NC: 2024:KHC:9915 RSA No. 312 of 2024

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Sri. Madhukar Nadig, learned counsel for the appellants reiterating the grounds urged in the

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memorandum of appeal submitted that;

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(a) the appellants were not made parties before the FDP Court by respondents herein despite they having the knowledge of their father namely Venugopal Naidu having passed away.

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(b) He further submits that even legal representatives of Balasundara Naidu, Defendant No.1 were not made parties in the FDP proceedings. He submits that FDP proceedings thus initiated against the dead persons was illegal and void and any order passed thereunder was not binding on them.

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(c) It is his further submission that petitioners in the FDP proceedings who claimed to be the legal representative of original plaintiff late

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Venkatalakshmamma also known as Bebamma are not her natural heirs. It is his contention that the

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NC: 2024:KHC:9915 RSA No. 312 of 2024

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said Venkatalakshmamma was married to one B.L.Babu Naidu and Venkatalakshmamma did not have any children. Said B.L.Babu Naidu also married to one Ammayamma and the said marriage was not legal and that petitioners in the FDP proceedings are the children born to the said B.L.Babu Naidu from his said second wife Ammayamma. Thus it is his case that they are illegitimate children not being entitled for any share in terms of Section 16 of Hindu Succession Act, 1956.

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(d) He submits that FDP Court and First Appellate Court without appreciating these aspects of the matter have allowed the Final Decree Proceedings. Further Executing Court without adverting to these specific issues raised in the application filed by the appellants herein under order 21 Rule 97 of CPC has rejected the said application which order has been

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confirmed by the First Appellate Court giving raise to substantial question of law to be considered in this appeal.

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NC: 2024:KHC:9915 RSA No. 312 of 2024

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8. In response, Sri. Madhwa Raj, learned counsel

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for the respondents 1 to 5 /decree holders submitted that;

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(a) the judgment and decree passed in O.S.No.12/1976 which was modified in

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R.A.No.33/1985 has attained finality. In that no share has been allotted to the defendant No.1 /Balasundara Naidu or defendant No.2/Venugopala Naidu. It is his further case that since they were not having any right, share, interest in the schedule property there was no need or necessity for the legal representatives who have brought on record in the final decree proceedings.

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(b) He however submits that since some of the legal representatives of deceased defendant Nos. 1 and 2 were in the possession, only those legal representatives who are in the possession are made as parties in the FDP proceedings. Thus, he submits

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NC: 2024:KHC:9915 RSA No. 312 of 2024

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that there is no illegality committed by the FDP Court in passing the order.

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(c) Further as regards the application filed under order 21 Rule 97 of CPC it is submitted that the appellants herein are claiming their right through their father who was not allotted any share in the suit and that there was no issue with regard to legitimacy otherwise of the appellants involved in the said application and the Executing Court and First Appellate Court applying the provisions of order 21 Rule 97 requiring the obstructers to make out their independent right, have passed the orders which is just and proper.

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At this juncture learned counsel for the appellants submits that appellants have also filed a suit in O.S.No.48/2021 before the V Addl. Senior Civil Judge and JMFC, Mysuru, seeking a relief of partition and also for declaration that the judgment and decree dated 14.06.2016 passed in FDP No.16/2013 is not binding on

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NC: 2024:KHC:9915 RSA No. 312 of 2024

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the appellants herein. He further submits that the said suit

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is pending consideration. Hence, seeks for allowing of the appeal.

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Heard. Perused the records.

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The requirement of filing application under

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order 21 Rule 97 of CPC is well defined in the provision itself and also well settled by catena of judgments. The

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Executing Court and the First Appellate Court have adverted to the said principles of law in detail. The Executing Court has found that since the appellants are seeking their right through and under their father- late Venugopala Naidu and have not set up any independent right as required for consideration of application under order 21 Rule 97 of CPC has rejected the application. The said reasoning, finding and conclusion arrived at by the Executing Court has been concurred and confirmed by the First Appellate Court.

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NC: 2024:KHC:9915 RSA No. 312 of 2024

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Though, learned counsel for the appellants submits that appellants did not make application claiming themselves as the legal representatives of deceased Venugopala Naidu but as the legal representatives of plaintiff-Venkatalakshmamma on the premise that the respondents are the illegitimate children not having the share, and in terms of provision of law the share which was allotted to the Venktalakshmamma would enure to the benefit of children of Venugopala Naidu, they had urged their independent right.

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It is necessary to note that the similar grounds and contentions being urged by the appellants herein in a separate suit instituted by them in O.S.No.48/2021 in which they have sought for a comprehensive relief of partition and also of a declaration that the judgment and decree passed in FDP proceedings as not binding on them.

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Since, appellants herein have opted for a more comprehensive relief, in fitness of things, it may not be appropriate for appellants to prosecute both application

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NC: 2024:KHC:9915 RSA No. 312 of 2024

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under Order 21 Rule 97 as well as the aforesaid comprehensive suit. In any event, the Executing Court and the First Appellate Court having found that the appellants have not established any independent right, this Court declined to show any indulgence, more particularly, in view of appellants having sought for a comprehensive relief in a separate suit. In that view of the matter no substantial question of law would arise for consideration in this appeal. Accordingly, appeal is dismissed.

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Notwithstanding dismissal of this appeal, since the appellants have initiated the comprehensive suit the same shall disposed of in accordance with law after affording opportunities to the parties.

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At this juncture, learned counsel for the appellants insists that an interim protection be granted to the appellants till disposal of the suit. Learned counsel for the respondents opposes, submitting that application filed by them has already been dismissed. Be that as it is.

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NC: 2024:KHC:9915 RSA No. 312 of 2024

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Since question of legitimacy of shares being claimed by the appellants is put in issue in the said suit, appellants are at liberty to file a fresh application before the Court in O.S.No.48/2021 which may be considered by the said

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Court after affording sufficient opportunities to the parties in accordance with law. The said application shall be filed within 15 days from the date of receipt of the certified copy of this order. The respondents in the meanwhile shall not create any third party right or interest over the schedule property till determination of application to be filed by the appellants before the Court in O.S.No.48/2021. It is made clear that dismissal of this appeal shall not come in the way of Trial Court disposing the said suit on its merits.

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Sd/JUDGE

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RU, List No.: 2 Sl No.: 16

Sri Singaravelu @ v. Dhananjaya v Smt Geetha S Babu

Case brief

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Sri Singaravelu @ v. Dhananjaya v Smt Geetha S Babu

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