This Revision Petition is filed against the order passed in O.S.No.4715/2012 by the XXXVII Addl. City Civil Judge, Bangalore, dated 5.9.2013 on I.A.No.6 filed under Order 2 Rule 2 of CPC filed by the defendant petitioner to dismiss the suit filed by respondents 1 to 6 herein on the basis of findings given by the said Court in Execution Petition No.411/2011.

2. Petitioner is stated to be the purchaser of the suit schedule property from his vendor by name Gururaj. Incidentally, it appears, Gururaj claims that he is the son of Narasaiah and Narasaiah had gifted the property in favour of Gururaj. Respondents 1 to 6 are claiming to be the wife and children of late Narasaiah. Petitioner filed Execution Petition No.411/2011 before the Executing Court in respect of execution of decree for specific performance which was obtained by him in O.S.No.8753/2011. The respondents 1 to 6 resisted the same by filing an application under Order 21 Rule 97 r/w Section 151 of CPC. The Execution Court after raising several issues for consideration, dismissed the said application negating the contentions of the respondents. However, a separate suit in O.S.No.4715/2012 came to be filed by respondents 1 to 6 on the very same day of filing of Execution Petition by the petitioner on the premise that the so called Gift Deed executed in favour of petitioner by Narasaiah was a sham document, no such valid Gift Deed is executed by Narasaiah and as such they are entitled for possession of suit schedule property. In this view of the matter, the issue to be decided in this revision petition is whether order of dismissal of application IA6 filed under Order 2 Rule 2 of CPC is just and proper and also as to whether the suit filed by respondents be tried as a separate suit.

3. The learned counsel for the petitioner argued that, petitioner had filed O.S.No.8733/2011 for specific performance and obtained an order of decree. In execution of the same, he filed Execution Petition No.411/2011. Respondents resisted the execution and filed separate suit O.S.No.4715/2012 for declaration with respect to the Gift Deed that the same is null and void and not binding on them. In that suit, petitioner filed IA6 to dismiss the suit on the ground that when the issues are settled by the Executing Court, considering the same issue once again in another suit is not proper and the suit is not maintainable. The learned counsel relied upon the decision of this Court in the case of Chandrakant Mallappa Desai & another –vs Mishrimal (1984(1) KLJ 347), wherein it is held as under :

“ To avoid multiplicity of proceedings and to read the proviso contained in Rules 101, 103 and 104 or Order 21 of the Code, harmoniously, as the same are to be read and interfered harmoniously and also keeping in view Section 10 of the Code, the proper course appears to hold that if on the date of initiation of the proceeding under Rule 97 of Order 21 of the Code, a suit between the parties has already been filed by the party who has sought to establish a right which he claims to the present possession of the property, proceeding instituted under Rule 97 of Order 21 of the Code, being a subsequent proceeding involving the same issues that are required to be decided in a pending suit between the same parties in respect of the same subject matter, shall have to be stayed pending decision in the suit.”

4. He further contended that, respondents having realized the situation, are trying to prolong the proceedings by iigenious method and accordingly, filed the suit the very same day of filing of Execution Petition so that they could have the advantage of stalling of execution of decree obtained by the petitioner. He further submitted that filing of the suit on the very same day of filing of Execution Petition cannot be treated as a separate suit pending consideration. The respondents had raised objection in the Execution Petition by filing an application under Order 21 Rule 97 of the CPC and all such objections ha