Fathima Bi Vs Maqbool Baig

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC. AGAINST THE JUDGMENT AND DECREE DATED 03.01.2013 PASSED IN EXECUTION APPEAL NO.1/2003 ON THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE, DAVANAGERE, DISMISSING THE APPEAL FILED AGAINST THE ORDER DATED 17.10.2003 PASSED IN EXECUTION CASE NO.108/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN), HARIHAR, DISMISSING THE APPLICATION IA NO.2 UNDER ORDER 21 RULE 97 OF CPC.

¶85

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

¶86

CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

¶87

6 -

¶88

NC: 2025:KHC:34241 RSA No. 718 of 2013

¶89

HC-KAR

¶90

ORAL JUDGMENT

¶91

Heard. This appeal is admitted to consider the following substantial questions of law:

¶92

(i) Whether the executing Court is justified in rejecting the application under Order XXI Rule 97 of CPC, which is filed by the alleged purchaser of the property from the decree holder after closure of final decree proceedings?

¶93

(ii) Whether the Trial Court had jurisdiction to entertain the application under Order XXI Rule 97 of CPC in the facts and circumstances obtained in the present case?

¶94

iii) Whether the Appellate Court was justified in entertaining the execution appeal?

¶95

With the consent of learned counsel for the

¶96

appellants and respondents, this appeal is heard on the merits.

¶97

Certain facts are admitted.

¶98

7 - NC: 2025:KHC:34241 RSA No. 718 of 2013

¶99

HC-KAR

¶100

O.S.No.64/1985 was filed by two plaintiffs, who

¶101

are respondent Nos. 1 and 2 of this appeal. The said suit was for partition and separate possession on the file of Civil Judge (Sr.Dn), Davanagere.

¶102

On 16.12.1986, the suit was decreed declaring that the plaintiffs No.1 and 2 of the said suit are entitled to 2/5^th share each and defendants No.1 and 2 of the said suit are entitled to 1/5^th share each and defendants No.3 and 4 of the said suit are entitled to 1/10^th share each in the suit property.

¶103

Plaintiffs/decree holders filed FDP No.5/1987, and in the said final decree proceedings, property measuring 15 x 90 feet is allotted to the joint share of plaintiffs No.1 and 2 and defendants No.3 and 4, who are respondents No.1 to 4 of this appeal.

¶104

Pursuant to the final decree referred to above, Execution Case No.86/1990 is filed before the Senior Civil Judge, Harihar. In the said proceedings, on 19.10.2001,

¶105

8 -

¶106

NC: 2025:KHC:34241 RSA No. 718 of 2013

¶107

HC-KAR

¶108

one Fathima Bi, the mother of the present appellants, filed

¶109

an application under Order XXI Rule 97 of the Code of Civil Procedure claiming that she is in possession of the property under the Will said to have been executed by her father Doddamane Lathif.

¶110

Fathima Bee further claimed that her father Doddamane Lathif purchased the property, which is allotted to the share of plaintiffs No.1 and 2.

¶111

Pursuant to the registered sale deed executed

¶112

by defendant No.1, Vazeer Baig, who was acting as Power of Attorney of plaintiffs No.1 and 2, in O.S. No. 64/1985, Fathimabi filed application under Order XXI Rule 97 of the Code of Civil Procedure (Code) in the execution proceeding filed after the Final Decree arising from a decree in O.S. No. 64/1985, claiming that her father executed a Will in her favour after having purchased the property from plaintiffs 1 and 2 in O.S. No. 64/1985.

¶113

9 -

¶114

NC: 2025:KHC:34241 RSA No. 718 of 2013

¶115

HC-KAR

¶116

The decree holders contended that the Court

¶117

has no jurisdiction to entertain the said application and also contended that the father of the applicant, who claims to have purchased the property during the pendency of the proceedings, is not entitled to any right in the property as the alleged transaction took place during the pendency of the proceedings and is hit by lis pendens .

¶118

The executing Court rejected the application and accepted the contention of the present respondents and held that the purchaser has not acquired any title to the property and the transaction is illegal.

¶119

Aggrieved by the said order, the appeal is filed before the Principal District Judge, Davanagere, which is registered as Execution Appeal No.1/2003.

¶120

In terms of the judgment dated 03.01.2013, the appeal is dismissed. Consequently, the order dated 17.10.2003 passed by the Trial Court is confirmed.

¶121

10 -

¶122

NC: 2025:KHC:34241 RSA No. 718 of 2013

¶123

HC-KAR

¶124

Aggrieved by the aforementioned order, the present second appeal is filed.

¶125

Learned counsel appearing for the legal

¶126

representatives of the deceased, original applicant, would submit that the Trial Court, the Executing and First Appellate Courts erred in holding that the transaction is illegal. It is his submission that the property purchased during the pendency of the proceedings does not perse invalidate the sale transaction and the purchaser would acquire the right over the property subject to the result of the proceedings. The plaintiffs have acquired the right over the property pursuant to the Final Decree Proceedings, and the transaction entered into by the decree holders/plaintiffs in favour of the original applicant’s father, Doddamane Lathif, is a valid transaction to the extent of the share allotted to plaintiffs No.1 and 2.

¶127

It is also urged that the Trial Court could not have held that the transaction is illegal and could not have dismissed the application under Order XXI Rule 97 of the

¶128

11 -

¶129

NC: 2025:KHC:34241 RSA No. 718 of 2013

¶130

HC-KAR

¶131

Code of Civil Procedure. It is also urged that the Appellate Court has also committed the same error without noticing the fact that the transaction between the decree holders and the original applicant’s father is a valid transaction and is saved by the principle of Lis pendence as the decree holders are also allotted share in the property and it is not the case that the vendors have no right over the property.

¶132

It is also urged on behalf of the appellants that the Power of Attorney in favour of defendant No.1 executed by plaintiffs No.1 and 2 is a registered Power of Attorney and the said Power of Attorney is not questioned and set aside and that being the position, the transaction in favour of the original applicant’s father executed by the Power of Attorney holder - defendant No.1 is valid.

¶133

Learned counsel appearing for the respondents would contend that the application under Order XXI Rule 97 of the Code is not maintainable. It is his submission that the application under Order XXI Rule 97 of the Code

¶134

12 -

¶135

NC: 2025:KHC:34241 RSA No. 718 of 2013

¶136

HC-KAR

¶137

of Civil Procedure can be filed by either the decree holder

¶138

or the purchaser from the decree holder to remove obstruction by a third party.

¶139

In the instant case, the original applicant claims that her husband, Vazeer Baig, sold the property to Doddamane Lathif and that being the position, the dispute

¶140

is between the decree holders and the so-called purchaser, and the said dispute cannot be adjudicated in a proceeding under Order XXI Rule 97 of the Code of Civil Procedure.

¶141

It is urged that the alleged Power of Attorney in favour of the first defendant is also disputed, and the Court did not have jurisdiction to consider the application on the merits, and the Court should have dismissed the application for want of jurisdiction.

¶142

This Court considered the contentions raised at the Bar and perused the records.

¶143

Order XXI Rule 97 of the Code of Civil Procedure would read as under:

¶144

13 -

¶145

NC: 2025:KHC:34241 RSA No. 718 of 2013

¶146

HC-KAR

¶147

" 97. Resistance or obstruction to possession of immovable property.—( 1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

¶148

(2) Where any application is made under subrule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained."

¶149

On perusal of the aforementioned provision, it is evident that in the instant case, there is an obstruction to the decree holders from the alleged purchaser from the decree holders. The executing Court can decide the application filed for removal of obstruction in case it is filed by the decree holders or the purchaser from the decree holder if the obstruction is by a third-party objector.

¶150

As noticed above, the present dispute is between the respondents, who are admittedly the decree holders and the applicant before the executing Court, who claims right over the property through her father, on the

¶151

14 -

¶152

NC: 2025:KHC:34241 RSA No. 718 of 2013

¶153

HC-KAR

¶154

premise that her father has purchased the property from the decree holders.

¶155

It is also noticed that the applicant claims that her father had executed a registered Will in her favour.

¶156

This being the position, this Court is of the view that the application under Order XXI Rule 97 of the Code could not have been decided on merits. The application was dismissed on merits, though the application was not maintainable and did not call for adjudication of the questions raised therein.

¶157

The proper course for the executing Court was to ask the applicant to institute an appropriate proceeding to establish the claim over the property. This being the position, the impugned order passed by the Trial Court is without jurisdiction, and the appellate Court could not have entertained and could not have considered the appeal on merits.

¶158

15 - NC: 2025:KHC:34241 RSA No. 718 of 2013

¶159

HC-KAR

¶160

It is also brought to the notice of this Court that

¶161

though the appeal is registered as execution of the appeal No.86/1990, it was the appeal under Section 96 of the Code of Civil Procedure. In any case, the appellate Court could not have decided the questions on merits as the Trial Court itself lacked the jurisdiction to decide the questions raised before it in a proceeding under Order XXI Rule 97 of the Code of Civil Procedure.

¶162

29. Hence the following:

¶163

ORDER

¶164

(i) The appeal is allowed .

¶165

(ii) The impugned order dated 03.01.2013 passed by First Appellate Court in Execution Appeal No.1/2003 on the file of the Principal District Judge, Davanagere, is hereby set aside.

¶166

(iii) The impugned order dated 17.10.2003 in Execution Case No.108/2002 on the file of Civil Judge (Sr.Dn.), Harihar, is hereby set aside.

¶167

16 -

¶168

NC: 2025:KHC:34241 RSA No. 718 of 2013

¶169

HC-KAR

¶170

(iv) The application filed by the original applicant, i.e., predecessor of the appellants, is dismissed for want of jurisdiction.

¶171

(v) Liberty is reserved to the appellants to file the suit or such other proceeding as advised in law to establish the claim over the suit property.

¶172

(vi) It is made clear that the time spent in prosecuting the application before the Executing Court till today has to be excluded for the purpose of limitation.

¶173

(vii) It is also made clear that this Court has not expressed any opinion on the merits of the case of either of the parties, and all contentions are left open.

¶174

SD/(ANANT RAMANATH HEGDE) JUDGE

¶175

MDS

¶176

List No.: 1 Sl No.: 5 ..

Fathima Bi v. Maqbool Baig

Case brief

What is this about?

What did the court decide?

Fathima Bi v. Maqbool Baig

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Kavitha S v Vs State of Karnataka

Chandregowda @ D D Chandregowda Vs State of Karnataka

Sri. Hafiz Vs Zohara

Parameshwarappa Vs Basvarajappa

Sri Vajresh L Vs Smt. M Babisha

Smt M L Savitha Vs Smt. G S Shobha