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2009 Supreme(Kar) 226
High Court of Karnataka
THE HONOURABLE MR. JUSTICE B.S. PATIL
Siddagangamma & Another
Versus
Rajalakshmi
Writ Petition No.7282 of 2008 (GM-CPC)
Decided on : 31-03-2009
For the Petitioners:H.V. Harish, Advocate. For the Respondent:
K.K.R. Law Chambers, Advocate.
Headnote:CODE OF CIVIL PROCEDURE, 1908 - Order 21, Rules 2 &2A: [B.S.Patil, J] Objections-Necessity to hold enquiry - Suit for partition - Preliminary decree declaring one-third share each to the plaintiff and two defendants - Plaintiff’s application for final decree - Appointment of Commissioner under Section 54 of CPC. for effecting partition - Defendant filing application along with alleged partition deed between plaintiff and defendants, contending that plaintiff agreed to take Rs. 35,000/- towards her share and requesting to recall the order of appointment of commissioner and close the final decree proceedings by recording satisfaction -Alleged partition deed not registered - Plaintiff denying partition and alleging fraud and forgery - Trial Court dismissed the application -Challenge as to - Held, Under Order 21, Rule 2, there is no mandate or requirement for holding an enquiry when the judgment debtor sets up a case of satisfaction of the decree followed by a denial of the same by decree holder. Although the plaintiff had alleged fraud, mischief and sinister design on the part of the defendants in creating such a document, the Court below has not thought it fit to go into this aspect as the stand taken by plaintiff that she had not executed such a document was enough to reject the application in the facts and circumstances of the case. On facts held, the defendants are trying to abuse the process of the Court by protracting the litigation indulging in making such kind of application.
1. In this writ petition, petitioners are challenging the order dated 01.09.2007 passed by the learned Civil Judge (Jr. Dn.) and JMFC., Koratagere, rejecting I.A. No.3 filed under Order 21 Rule 2 read with Section 151 CPC in FDP No.2/2006.
2. Petitioners-1 & 2 are defendants-1 & 2 in O.S.No.78/2003. Respondent herein had filed the said suit seeking partition and separate possession of the joint family properties. The suit was decreed and a preliminary decree came to be passed on 22.12.2005 declaring that the plaintiff and the defendants had 1/3rd share in all the suit schedule properties. It was held that the plaintiff was entitled for partition and separate possession of her 1/3rd share and a direction was issued for effecting partition in terms of Section 54 CPC.
3. Pursuant to the said decree the plaintiff-respondent herein initiated final decree proceedings in FDP No.2/2006. In the final decree proceedings, the Court below appointed a Court commissioner for effecting partition. The Commissioner warrant was issued on 24.08.2006. The matter was adjourned to 25.10.2006. Subsequently, after several adjournments, petitioner no.2 herein – respondent no.2 in the final decree proceedings was placed exparte. However, petitioner no.1 herein was represented by a counsel.
4. On 22.08.2007, the respondents in the final decree proceedings filed an application seeking advancement of the case along with another application filed under Order 21 Rule 2 read with Section 151 CPC requesting the Court to close the preliminary decree in O.S. No.78/2003 and the proceedings in FDP No.2/2006 by certifying satisfaction or adjustment of the decree outside the Court in terms of a partition deed allegedly effected on 21.08.2007 between the plaintiff and the defendants. This application was supported by an affidavit of petitioner no.1 herein who stated that the parties had got executed a partition deed on 21.08.2007 wherein in lieu of 1/3rd share of the plaintiff-respondent herein she had taken a sum of Rs.35,000/- in cash and had given up her share in favour of defendants/petitioners herein. The said partition deed was produced along with the application with a request to recall the warrant issued to the Court Commissioner for effecting partition of the suit schedule item No.1 and to dismiss the final decree proceedings.
5. The plaintiff filed her objections. In paragraph-3 of the objection, she specifically contended that the alleged partition deed dated 21.08.2007 was a created one and it did not bear her signature. She further contended that her signatures were forged on the said documents. She also urged that such an application in the final decree proceedings was not maintainable. Allegations of mischief and fraud were also leveled against the defendants/petitioners herein imputing malafide intention and sinister design to get out of the clutches of the Court to avoid the obligation of effecting partition in terms of the decree passed.
6. The Court below has rejected the application noting the objections filed and keeping in mind the stand taken by the plaintiff that no such compromise with the judgment debtors was entered into. It is this order that is challenged by the petitioners in this writ petition.
7. Counsel for the petitioners placing reliance on the provisions contained in Order 21 Rule 2 CPC submits that the Court below was duty bound to hold an enquiry into the assertion made by the petitioners that the preliminary decree passed was adjusted by way of a compromise reached between the parties which was reduced into writing in the form of a partition deed. In this connection, he draws the attention of the Court to Order 21 Rule 2(2) and 2A(b) CPC. Order 21 Rule 2 CPC pertains to payment out of Court to the decree holder. It is necessary to refer to the provisions contained in the various sub-rules of Order 21 Rule 2 CPC, which read as under:
“R. 2. Payment out of Court to decree-holder.-
(1) Where any money payable under a de
