M Ramachandra S/O Late M Purushotham Vs S. Lacchanna S/O Late S Hanumanthappa

M. RAVICHANDRA S/O. LATE M. PURUSHOTHAM, AGED ABOUT 38 YEARS, WORKING IN NIRM, 2^ND FLOOR, 509, OPP. ADISHWAR SHOW ROOM, NEAR ICICI BANK, KAMANAHALLI MAIN ROAD, BENGALURU-560 043.

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YASHAVANT NARAYANKAR

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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SMT. M. VIDYAVATHI W/O. LATE M. PURUSHOTHAM, AGED ABOUT 46 YEARS, AGRICULTURIST, R/O. KAMPLI KOTTAL VILLAGE, HOSAPETE TALUK, BALLARI DISTRICT.

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…APPELLANTS

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(BY SRI. K.L. PATIL & SRI. SOURABH A. SONDUR, ADVOCATES)

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AND:

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S. LACCHANNA S/O. LATE S. HANUMANTHAPPA, AGED ABOUT 72 YEARS, R/O. BHARATHI NAGAR, AMARAWATHI,

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NC: 2025:KHC-D:11429-DB RFA No. 100415 of 2020

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HC-KAR

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HOSAPETE, BALLARI.

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M. SUBHASHCHANDRA S/O. M. PURUSHOTHAM, AGED ABOUT 43 YEARS, OCC: AGRICULTURIST, R/O. OPP. VENKATESHWAR TALKIES, DOOR NO.953/8, 1^ST FLOOR, 22^ND WARD, NEAR APMC, KAMPLI, HOSAPE TALUK, BALLARI DISTRICT.

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…RESPONDENTS

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(BY SRI. ARUN L. NEELOPANT & MS. KAVITA JADHAV, ADVOCATES FOR C/R1; SRI. SATISH M.S. ADVOCATE FOR R2)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO SET ASIDE THE ORDER AND DECREE DATED 17.11.2020 PASSED BY 1^ST ADDITIONAL SENIOR CIVIL JUDGE, BALLARI, IN E.P.NO.258/2014, THEREBY REJECTING THE 3^RD PARTY APPLICATION FILED UNDER ORDER 21 RULE 58 READ WITH SECTION 151 CPC AND CONSEQUENTLY ALLOW THE I.A. NO.4 AND ETC.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA

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NC: 2025:KHC-D:11429-DB RFA No. 100415 of 2020

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR)

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This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908¹ , by the appellants/applicants challenging the order dated 17.11.2020 passed on I.A.No.IV in Execution Petition No.258/2014 by the First Additional Senior Civil Judge, Ballari² , whereby the application filed by the appellants/applicants under Order XXI Rule 58 R/w Section 151 of the CPC, seeking adjudication of their claim in respect of the execution petition schedule property was dismissed by the Executing Court.

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Briefly stated the facts giving rise to the present appeal are that the appellants are the brothers and mother of respondent No.2-M. Subhashchandra, against whom, the respondent No.1 instituted a suit in O.S.No.33/2010 before the Trial Court for recovery of money and other reliefs. After contest, the said suit was decreed in favour of respondent No.1 (plaintiff/decree holder in O.S.No.33/2010) against

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1 Hereinafter referred to as the ‘CPC’

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2 Hereinafter referred to as the ‘Executing Court’

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HC-KAR

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respondent No.2 (defendant/judgment debtor in O.S.No.33/2010), directing the respondent No.2 to pay a sum of ₹17,20,000/- together with interest, costs and other reliefs.

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The respondent No.2 preferred an appeal in RFA No.4115/2013 before this Court, which was withdrawn unconditionally by the respondent No.2, and the said appeal was disposed of by this Court vide order dated 23.02.2017. Accordingly, the said judgment and decree passed in favour of respondent No.1/decree holder against respondent No.2/judgment debtor in O.S.No.33/2010 attained finality and became conclusive and binding on the respondent No.2.

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The respondent No.1 instituted instant execution proceedings in E.P.No.258/2014 against the respondent No.2/judgment debtor to enforce, implement and execute the said judgment and decree passed in his favour in O.S.No.33/2010 against respondent No.2. During the pendency of the execution proceedings, the appellants herein, who are the brothers and mother of the respondent No.2-M. Subhashchandra, filed I.A.No.IV under Order XXI Rule 58 r/w

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HC-KAR

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Section 151 of the CPC, seeking adjudication of their claim as third party objectors/obstructors, contending, inter alia , that the properties attached in the execution proceedings bearing Sy.No.366/A measuring 28 acres 96 cents and Sy.No.366/B measuring 2 acres were joint family properties, in which, the appellants/third party objectors have an undivided share. Consequently, the said attachment order passed during the execution proceedings deserves to be vacated. It was also contended that the appellants have already instituted a separate suit in O.S.No.38/2013 clubbed with O.S.No.56/2016 on the file of Principal Senior Civil Judge and JMFC, Hosapete³ , and as such, the rights of the appellants in the aforesaid two properties, which were described as Item Nos.6 and 7 of suit schedule ‘B’ properties deserve to be adjudicated, and the attachment deserves to be raised by the Executing Court.

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The respondent No.1 having filed objections to I.A.No.IV, the Executing Court proceeded to pass the impugned order rejecting the said application. Being aggrieved

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3 Hereinafter referred to as the ‘Trial Court’

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HC-KAR

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by the same, the appellants have preferred the present appeal before this Court.

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The learned counsel for the appellants submits that, during the pendency of the present appeal, the Trial Court in O.S.No.38/2013, which was clubbed with O.S.No.56/2016, has partly decreed the suit by declaring that the appellants are entitled to 1/4^th share in the suit schedule properties, including Item Nos.6 and 7 of the suit schedule ‘B’ properties, which are the subject matter of the execution proceedings and had been attached by the Executing Court in the Execution Petition No.258/2014. It was also submitted that the decision in the said suits was carried in appeals in R.A.Nos.5019/2023, 5020/2023, 5031/2023 and 5032/2023, which were disposed of vide order dated 24.03.2025, by modifying the judgment and decree of the Trial Court, and declaring that the appellant Nos.1 and 2 are entitled to 5/12^th share each in some of the suit schedule properties including Item Nos.2, 6 and 7 of the suit schedule ‘B’ properties, which were the subject matter of I.A.No.IV and the present appeal.

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HC-KAR

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It is therefore submitted that that impugned order passed by the Trial Court rejecting I.A.No.IV deserves to be set aside and I.A.No.IV filed by the appellants deserves to be allowed.

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Per contra, the learned counsel for respondent No.1 submits that, being aggrieved by the said judgment and decree dated 24.03.2025 passed in R.A.No.5019/23 and connected matters by the First Appellate Court, the respondent No.1 has preferred RSA(FR) Nos.100732/2025, 100733/2025, 100734/2025 and 100735/2025, which are pending before this Court. It is therefore submitted that there is no merit in the appeal and the same is liable to be dismissed.

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The submissions of both the learned counsels have

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been considered, and the material on record including the records of the Executing Court have been perused.

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The following points that arise for consideration in the present appeal are:

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HC-KAR

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(i) Whether the judgment and decree dated 31.01.2023 passed in O.S.No.38/2013 C/w O.S.No.56/2016 passed by the Trial Court, and the judgment dated 24.03.2025 passed in R.A.No.5019/2023 C/w R.A.Nos.5020/2023, 2031/2023 and 5032/2023 would have any impact bearing on the present appeal? (ii) Whether the impugned order passed on I.A.No.IV warrants interference by this Court in the present appeal?

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A perusal of the undisputed material on the record will indicate that, at the time of passing of the impugned order dated 17.11.2020 in E.P.No.258/2014 rejecting I.A.No.IV filed by the appellants, the suit in O.S.No.38/2013 clubbed with O.S.No.56/2016 were pending adjudication before the Trial Court. It is also an undisputed fact that the subject matter of the execution proceedings, in particular I.A.No.IV i.e., Sy.No.366/A measuring 28 acres 96 cents and Sy.No.366/B measuring 02 acres were the subject matter of the aforesaid two suits as Item Nos.6 and 7 of the suit schedule ‘B’ properties. It is also a matter of record that during the pendency of the present appeal, not only did the aforesaid two

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HC-KAR

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suits get disposed declaring that the appellants/plaintiffs were entitled to a share in the suit schedule properties including the aforesaid Item Nos.6 and 7 of the suit schedule ‘B’ properties, the quantum of share of the appellants was modified by the First Appellate Court by the said judgment and decree dated 24.03.2025.

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As stated earlier, the subject matter of the present appeal, which arises out of I.A.No.IV in relation to Sy.No.366/A measuring 28 acres 96 cents and Sy.No.366/B measuring 02 acres, were also the subject matter of the aforesaid suit and the appeal, wherein they were described as Item Nos.6 and 7 of the suit schedule ‘B’ properties.

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Under these circumstances, we are of the view that the subsequent events that have transpired/occurred during the pendency of the present appeal have a direct and substantial bearing/impact on the present appeal. Consequently, in the light of the said subsequent events, which have transpired subsequent to passing of the impugned order, though several contentions have been urged by both

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HC-KAR

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sides in support of their respective claims, without expressing any opinion on the merits/demerits of the rival contentions, and in order to enable the Executing Court to reconsider I.A.No.IV in the light of the subsequent event of the judgment and decree passed in O.S.No.38/2013 clubbed with 56/2016, and the Judgment passed in R.A.No.5019/2023 clubbed with R.A.Nos.5020/2023, 5031/2023 and 5032/2023, we deem it just and appropriate to set aside the impugned order and remit the matter back to the Executing Court for reconsideration of I.A.No.IV afresh in accordance with law, by leaving open all contentions. Accordingly, point Nos.(i) and (ii) framed for consideration are answered in the ‘affirmative’.

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Hence the following:

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ORDER

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(i) The above appeal is allowed;

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(ii) The order dated 17.11.2020 passed on I.A.No.IV filed in Execution Petition No.258/2014 by the First Additional Senior Civil Judge, Ballari,

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HC-KAR

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is set aside and the matter is remitted back to the Executing Court for reconsideration of I.A.No.IV afresh in accordance with law;

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(iii) Liberty is reserved in favour of the parties to file additional pleadings, oral evidence and documentary evidence, etc., in support of their respective claims and to bring on record subsequent events that have transpired during the pendency of the present appeal;

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(iv) Liberty is also reserved in favour of the parties to seek advance/preponement of the pending execution proceedings in Execution Petition No.258/2014 before the Executing Court;

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(v) The Executing Court shall reconsider and pass appropriate orders within a period of six months from the date of receipt of copy of this order;

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(vi) Both the parties are directed to cooperate with the Executing Court for expeditious disposal of I.A.No.IV in accordance with law;

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(vii) Registry to transmit the Trial Court Records back to the Executing Court forthwith;

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(viii) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the merits/demerits of the rival contentions;

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(ix) The pending I.A.’s, if any, are disposed of accordingly as they do not survive for

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consideration in this appeal.

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Sd/(S.R. KRISHNA KUMAR) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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PMP

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CT-MCK/List No.: 1 Sl No.: 24

M Ramachandra S/O Late M Purushotham v. S. Lacchanna S/O Late S Hanumanthappa

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M Ramachandra S/O Late M Purushotham v. S. Lacchanna S/O Late S Hanumanthappa

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