Smt Thoreyamma Vs Sri K N Chandraiah

(BY SRI M.R. RAJGOPAL, SR. COUNSEL FOR SRI THAMMAIAH H.N, ADV., FOR R-1; V/O DTD 12.06.2024 NOTICE TO LRs OF DECEASED R-2 IS D/W SMT. RADHA RAMASWAMY, AGA FOR R-3)

¶30

THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-A ORDER DTD 18.01.2024 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, TURUVEKERE ON IA NO.3 IN EX. NO.25/2017 DIRECT THE EXECUTING COURT (SENIOR CIVIL JUDGE AND JMFC, TURUVEKERE) TO GO ON WITH THROUGH ENQUIRY IN RESPECT OF APPLICATION IA NO. 3 FILED BY THE APPLICANTS/PETITIONERS BY TREATING THE CONTENTIONS RAISED IN THE AFFIDAVIT IN SUPPORT OF AN APPLICATION AS AN ISSUE TO BE DEALT WITH BY RECORDING THE EVIDENCE AND THEREAFTER TO PASS THE JUDGMENT.

¶31

THIS PETITION, HAVING BEEN RESEREVED FOR ORDERS ON 03.12.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, COURT MADE THE FOLLOWING:

¶32

CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

¶33

CAV ORDER

¶34

This writ petition under Article 227 of the Constitution of India, is filed seeking for the following reliefs:-

¶35

"i) Quash Annexure A order dated 18/01/2024 passed by the Senior Civil Judge & JMFC, Turuvekere on I.A.No.3 in Ex.No.25/2017.

¶36

ii) Issue Writ of Mandamus directing the executing Court (Senior Civil Judge & JMFC, Turuvekere)

¶37

3 -

¶38

NC: 2025:KHC:51983 WP No. 5901 of 2024

¶39

HC-KAR

¶40

to go on with thorough enquiry in respect of application I.A No.3 filed by the applicants/petitioners by treating the contentions raised in the affidavit in support of an application as an issue to be dealt with by recording the evidence and thereafter to pass the Judgment.

¶41

iii) Pass such other Writ/s or order/s, which are deemed to be fit in the nature and circumstances of the case, in the interest of justice and equity."

¶42

Heard the learned counsel for the parties.

¶43

Suit in OS No.36/2016 was filed by respondent No.1 herein against respondent No.2 herein seeking the relief of specific performance. The said suit was decreed with costs by judgment and decree dated 09.10.2017. The Decree Holder has filed Execution Case No.25/2017 before the Trial Court to execute the decree passed in OS No.36/2016. IA No.3 was filed in Execution Case No.25/2017 by the petitioners herein under Order XXI Rule 97 of CPC. The Trial Court vide the order impugned has dismissed the said application. Being aggrieved by the same, petitioners are before this Court.

¶44

Learned counsel for the petitioners having reiterated the grounds urged in the petition submits that petitioners title in respect of the suit schedule property in OS No.36/2016 has been declared in OS No.247/2015 which was decreed on 31.01.2016. The proceedings in OS No.36/2016 has taken place behind the back of the petitioners

¶45

4 - NC: 2025:KHC:51983 WP No. 5901 of 2024

¶46

HC-KAR

¶47

and the said decree is a collusive decree. The judgment debtor has played fraud on the petitioners as well as the decree holder in OS No.36/2016. The Executing Court has not held any enquiry with regard to the right, title and interest of the petitioners in the suit schedule property. Therefore, it cannot be said that there was determination of their rights under Rule 101 of Order XXI of CPC. She submits that order impugned therefore, cannot be considered as a decree as provided under Rule 103 of CPC. She also submits that person having right, title and interest on the property can maintain an objection under Order XXI Rule 97 of CPC even before he is dispossessed from the property in question. In support of her arguments, she has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Periyammal (Dead) Through LRs.

¶48

and Others vs. V. Rajamani and Another - (2025) 9 SCC 568 .

¶49

Per contra, learned counsel for contesting respondent submits that order impugned is appealable in view of Rule 103 of Order XXI of CPC. He also submits that since the petitioners are not dispossessed and the proceedings before the Executing Court is at the stage of preparing 11-E sketch in respect of the suit schedule property, the application filed under Order XXI Rule 97 of CPC, was not maintainable. He submits that petitioners herein who are the wife and son of late K. Huchappa, who is the vendor of respondent No.2

¶50

5 - NC: 2025:KHC:51983 WP No. 5901 of 2024

¶51

HC-KAR

¶52

herein have colluded with respondent No.2 and a compromise decree was passed in OS No.247/2015. He submits that since the petitioners did not have a pre-existing right in respect of the suit schedule property, the decree passed in O.S.No.247/2015 is compulsorily registerable. Therefore, the petitioners have not derived any right, title or interest under the decree passed in OS No.247/2015 since the said decree is not registered. He, accordingly, prays to dismiss the petition.

¶53

Respondent No.1 herein has initiated execution proceedings before the Trial Court in Execution Case No.25/2017 to execute the decree of specific performance passed in his favour in OS No.36/2016. Respondent No.2 herein is the judgment debtor in OS No.36/2016. The material on record would go to show that the suit schedule property originally belonged to K. Huchappa, who is the husband of the first petitioner and father of second petitioner herein. Respondent No.2 herein - Marudappa had purchased the said property from late Sri. K. Huchappa under a Sale Deed dated 09.12.1980 for a valid consideration. After the death of K. Huchappa, OS No.247/2015 was filed by his wife and son, who are the petitioners herein with a prayer to declare their title in respect of the suit schedule property contending that they had succeeded to the said property after death of K. Huchappa.

¶54

6 - NC: 2025:KHC:51983 WP No. 5901 of 2024

¶55

HC-KAR

¶56

As on the date of filing OS No.247/2015, since K. Huchappa had already executed a Sale Deed in favour of Marudappa, who is the judgment debtor in the present case, petitioners herein, who are the wife and son of K. Huchappa had no pre-existing right over the suit schedule property. However, based on the compromise petition submitted by petitioners and Marudappa, who was the sole defendant in OS No.247/2015, a compromise decree was passed in the said suit on 31.01.2016. The Hon'ble Supreme Court in the case of Bhoop Singh vs. Ram Singh Major and Others - (1995) 5 SCC 709 , in paragraph No.18 has observed as follows:-

¶57

"18. The legal position qua clause (vi) can, on the basis of the aforesaid discussion, be summarised as below:

¶58

(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp duty and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration.

¶59

(2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs 100 or upwards in favour of any party to the suit the decree or order would require registration.

¶60

(3) If the decree were not to attract any of the clauses of sub-section (1) of Section 17, as was the

¶61

7 -

¶62

NC: 2025:KHC:51983 WP No. 5901 of 2024

¶63

HC-KAR

¶64

position in the aforesaid Privy Council and this Court's cases, it is apparent that the decree would not require registration.

¶65

(4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of the compromise in question.

¶66

(5) If the property dealt with by the decree be not the “subject-matter of the suit or proceeding”, clause (vi) of sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated."

¶67

From the aforesaid, it is apparent that decree passed in OS No.247/2015 created right, title and interest in the suit schedule property which is valued more than Rs.100, in favour of the petitioners herein for the first time and therefore, the said decree was hit by Section 17 of the Registration Act, 1908. Petitioners therefore do not derive any right, title or interest on the property which is subject matter of the decree passed in OS No.247/2015, unless the said decree is registered in compliance of Section 17(1)(e) of the Registration Act, 1908. In the absence of registration, the said

¶68

8 - NC: 2025:KHC:51983 WP No. 5901 of 2024

¶69

HC-KAR

¶70

decree can be considered only for collateral purposes and not to prove the right, title and interest of the decree holder.

¶71

Petitioners herein have filed application under Order XXI Rule 97 of CPC in the execution proceedings claiming that the Tahsildar had come to the suit schedule property to prepare 11-E sketch in compliance of the orders passed in the execution proceedings and having come to know about the pendency of the proceedings, they had filed the application, since they apprehend of being dispossessed from the suit schedule property. The Trial Court has observed that since no possession of the suit schedule property is sought in the execution proceedings and the prayer made in the execution proceedings is only to direct the judgment debtor to execute the registered Sale Deed in respect of the suit schedule property, failing which to appoint a Court Commissioner to execute the registered Sale Deed on behalf of the judgment debtor in favour of the decree holder, the application filed under Order XXI Rule 97 of CPC, cannot be entertained. This approach of the Trial Court, in my considered opinion, is not correct. More so, having regard to the observations made by the Hon'ble Supreme Court in case of Periyammal (supra) , at paragraph No.44, which reads as follows:-

¶72

9 -

¶73

NC: 2025:KHC:51983 WP No. 5901 of 2024

¶74

HC-KAR

¶75

"44. This Court in Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal, has held that: (SCC pp. 701-703 & 705, paras 8-10)

¶76

“8. A conjoint reading of Order 21 Rules 97, 98, 99 and 101 projects the following picture:

¶77

(1) If a decree-holder is resisted or obstructed in execution of the decree for possession with the result that the decree for possession could not be executed in the normal manner by obtaining warrant for possession under Order 21 Rule 35, then the decree-holder has to move an application under Order 21 Rule 97 for removal of such obstruction and after hearing the decree-holder and the obstructionist the court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21 Rule 97 sub-rule (2) read with Order 21 Rule 98. It is obvious that after such adjudication if it is found that the resistance or obstruction was occasioned without a just cause by the judgment-debtor or by some other person at his instigation or on his behalf then such obstruction or resistance would be removed as per Order 21 Rule 98 sub-rule (2) and the decreeholder would be permitted to be put in possession. Even in such an eventuality the order passed would be treated as a decree under Order 21 Rule 101 and no separate suit would lie against such order meaning thereby the only

¶78

10 -

¶79

NC: 2025:KHC:51983 WP No. 5901 of 2024

¶80

HC-KAR

¶81

remedy would be to prefer an appeal before the appropriate appellate court against such deemed decree.

¶82

(2) If for any reason a stranger to the decree is already dispossessed of the suit property relating to which he claims any right, title or interest before his getting any opportunity to resist or offer obstruction on spot on account of his absence from the place or for any other valid reason then his remedy would lie in filing an application under Order 21 Rule 99 CPC claiming that his dispossession was illegal and that possession deserves to be restored to him. If such an application is allowed after adjudication then as enjoined by Order 21 Rule 98 sub-rule (1) CPC the executing court can direct the stranger applicant under Order 21 Rule 99 to be put in possession of the property or if his application is found to be substanceless it has to be dismissed. Such an order passed by the executing court disposing of the application one way or the other under Order 21 Rule 98 sub-rule (1) would be deemed to be a decree as laid down by Order 21 Rule 103 and would be appealable before appropriate appellate forum. But no separate suit would lie against such orders as clearly enjoined by Order 21 Rule 101.

¶83

9. In short the aforesaid statutory provisions of Order 21 lay down a complete code

¶84

11 -

¶85

NC: 2025:KHC:51983 WP No. 5901 of 2024

¶86

HC-KAR

¶87

for resolving all disputes pertaining to execution of the decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist in only under Order 21 Rule 97 sub-rule (1) and he cannot bypass such obstruction and insist on reissuance of warrant for possession under Order 21 Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order 21 Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the executing court it is difficult to appreciate how the executing court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order 21 Rule 99CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order 21 Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualise that a

¶88

12 -

¶89

NC: 2025:KHC:51983 WP No. 5901 of 2024

¶90

HC-KAR

¶91

stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order 21 Rule 99. Order 21 Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decreeholder. While Order 21 Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order 21 and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of

¶92

13 -

¶93

NC: 2025:KHC:51983 WP No. 5901 of 2024

¶94

HC-KAR

¶95

Order 21 Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order 21 Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decreeholder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist, who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard or merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the executing court, therefore, would fail also on the ground of noncompliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order 21 Rule 97 CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree-holder as well as to the obstructionist to have their

¶96

14 -

¶97

NC: 2025:KHC:51983 WP No. 5901 of 2024

¶98

HC-KAR

¶99

respective say in the matter and to get proper adjudication before the executing court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21 Rules 97 and 103 would remain a complete code and the sole remedy for the parties concerned to have their grievances once and for all finally resolved in execution proceedings themselves.

¶100

10. … ‘5. … A reading of Order 21 Rule 97 CPC clearly envisages that “any person” even including the judgment-debtor irrespective whether he claims derivative title from the judgment-debtor or sets up his own right, title or interest dehors the judgment-debtor and he resists execution of a decree, then the court in addition to the power under Rule 35(3) has been empowered to conduct an enquiry whether the obstruction by that person in obtaining possession of immovable property was legal or not. The decree-holder gets a right under Rule 97 to make an application against third parties to have his obstruction removed and an enquiry thereon could be done. Each occasion of obstruction or resistance furnishes a cause of action to the

¶101

15 -

¶102

NC: 2025:KHC:51983 WP No. 5901 of 2024

¶103

HC-KAR

¶104

decree-holder to make an application for removal of the obstruction or resistance by such person.

¶105

(emphasis supplied)"

¶106

Learned counsel for the contesting respondent has raised a contention that order impugned has been passed considering the oral and documentary evidence placed on record by the petitioners herein. Therefore, the same amounts to a decree as provided under Rule 103 of CPC and therefore, this petition is not maintainable.

¶107

Order XXI Rule 97 of CPC provides for Resistance or obstruction to possession of immovable property and sub-rule (2) of Rule 97 of CPC provides that where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. Rule 101 provides that all questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 shall be determined by the Court dealing with the application and not by a separate suit. Rule 98 provides that upon the determination of the questions referred to in Rule 101, the Court shall pass orders as provided under sub-rule (1) which however would be subject to subrule (2) of Rule 101.

¶108

16 - NC: 2025:KHC:51983 WP No. 5901 of 2024

¶109

HC-KAR

¶110

Reading of sub-rule (1)(a) of Rule 98, would make it clear that upon the determination of the questions referred to in Rule 101, the Court shall in accordance with such a determination and subject to the provisions of sub-rule (2), make an order either allowing the application or dismissing the application.

¶111

In the case on hand, an application filed on behalf of the petitioners herein under Order XXI Rule 97 of CPC, raising question of their right, title and interest over the suit schedule property was considered and determined as provided under Rule 101 and thereafter the application was dismissed as provided under Rule 98. Rule 103 provides that where any application has been adjudicated upon under Rule 98, the order made thereon shall have the same force and be subject to the same condition as to an appeal or otherwise as if it were a decree.

¶112

The Hon'ble Supreme Court in the case of Periyammal (supra), has considered the aforesaid aspects of the matter and in paragraph Nos.49, 50, 51 and 54 has observed as follows:-

¶113

"49. A conjoint reading of the relevant provisions and the principles laid down by this Court makes it clear that in execution of decree for possession of immovable property, the executing court delivers actual physical possession of the decretal land to the decree-holder.

¶114

17 -

¶115

NC: 2025:KHC:51983 WP No. 5901 of 2024

¶116

HC-KAR

¶117

Rule 35 confers jurisdiction on the executing court to remove any person, who is bound by the decree and who refuses to vacate the property. The words “any person who is bound by the decree”, clearly mandate that removal can only be of a person who is bound by the decree. Rules 97 to 101 deal with situation when execution is obstructed or resisted by “any person” claiming right, title or interest in the property. The words “any person” include even a stranger to a decree resisting the decree of possession as not being bound by a decree or by claiming independent right, title or interest to the property.

¶118

50. Thus, Rule 97 not only provides to a decree-holder in obtaining possession of an immovable property but also to a stranger who obstructs or resists delivery of possession of the property by claiming derivative title from the judgment debtor or independent right, title or interest in the decretal property. Whereas, Rule 99 gives right to a third party claiming right, title or interest in the property to seek restoration of the decretal property. Suffice it to say that the remedy under Rule 99 is available when a person claiming right to the decretal property is already dispossessed.

¶119

51. Rule 101 enjoins upon the executing court dealing with application under Rule 97 or 99 to determine all questions including questions relating to right, title or interest in the property, arising between the parties and relevant to the adjudication of the application. As held by this Court in Silverline Forum [Silverline Forum (P)

¶120

18 -

¶121

NC: 2025:KHC:51983 WP No. 5901 of 2024

¶122

HC-KAR

¶123

Ltd. v. Rajiv Trust, (1998) 3 SCC 723] the question that the executing court is obliged to determine under Rule 101 must possess two adjuncts viz. (i) that such question should have legally arisen between the parties, and (ii) such question must be relevant for consideration and determination between the parties. Upon adjudication of such questions, the executing court is under an obligation to pass appropriate order as contemplated under Rule 98 or 100, as the case may be. When eventually such order is passed, it would be treated as decree and no separate suit would lie against such order. It therefore follows that the only remedy is to prefer an appeal before the appropriate court against such deemed decree.

¶124

xxx

¶125

54. Thus the cumulative effect of all these rights read together is that if an application under Order 21 Rule 97 is made, then its determination will be under Rule 101 and then Rule 103 further provides that where any application has been adjudicated upon under Rules 98 or 100, the order made thereon shall have the same force and will be subject to the same conditions as to an appeal or otherwise as if it were a decree. Under Section 47CPC all questions relating to the execution, discharge or satisfaction of the decree, have to be determined by the executing court whereas under Rule 101 all questions including question relating to right, title or interest in the property arising between the parties to the proceedings have to be determined by the executing

¶126

19 -

¶127

NC: 2025:KHC:51983 WP No. 5901 of 2024

¶128

HC-KAR

¶129

court. Section 47 is a general provision whereas Order 21 Rules 97 and 101 deal with a specific situation. Moreover, Section 47 deals with executions of all kinds of decrees whereas Order 21 Rules 97 and 101 deal only with execution of decree for possession. Apart from that, earlier i.e. prior to the amendment, every order falling under Section 47 was appealable (as the terms “decree” included the order under Section 47CPC) whereas now only certain orders as provided for under Order 21 have been made appealable."

¶130

A reading of the order impugned would clearly go to show that after receiving the application under Order XXI Rule 97 of CPC filed on behalf of the petitioners, an enquiry was held and during the course of enquiry, two witnesses were examined as PW1 and PW2 on behalf of the petitioners herein and 30 documents were got marked as Ex.P1 to P30. The Executing Court, after having appreciated the oral and documentary evidence has observed that applicants are not entitled for any relief in the said application. In addition to the said finding, the Executing Court has also held that the application cannot be maintained since the execution proceedings was initiated not seeking delivery of the possession but only to direct the judgment debtor to execute the Sale Deed in respect of the suit schedule property in compliance of the decree passed in OS No.36/2016. Therefore, in my considered opinion, the order impugned amounts to a decree as provided under Rule 103 of Order XXI of CPC, as against

¶131

20 -

¶132

NC: 2025:KHC:51983 WP No. 5901 of 2024

¶133

HC-KAR

¶134

which, the aggrieved party has a remedy of an appeal. Under the circumstances, the writ petition is not maintainable and therefore, the same cannot be entertained. Accordingly, the writ petition is

¶135

dismissed .

¶136

Sd/(S VISHWAJITH SHETTY) JUDGE

¶137

DN

¶138

List No.: 1 Sl No.: 83

Smt Thoreyamma v. Sri K N Chandraiah

Case brief

What is this about?

What did the court decide?

Smt Thoreyamma v. Sri K N Chandraiah

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Smt Kusuma Vs Smt Snehalatha

Sri B Prithvi Raj Vs Smt Neelamma

Union Bank of India Vs Mr Nalla Reddy Ajay

Smt. Mohini Kharvi Vs Sri. Dasa @ Minna Kharvi

Smt Pushpa C Kotian Vs Smt Indira

Sri C Venkateshappa Vs Sri Ramoji Rao