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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
A.V. CHANDRASHEKARA, J.
S. Shashikala – Petitioner
Versus
Mark Gomez – Respondent
Writ Petition Nos. 8136-8137 & 8188-8189 of 2015
Decided On : 30.7.2015
Article 227 - Challenging Common Order - Order 1 Rule 10(2) of CPC, Order 21 Rule 97 of CPC, Section 146 and Order 21 Rule 16 of CPC - The court allowed the additional decree holder to contest the case based on an unregistered will, citing the legal representative definition under Section 2(11) of the CPC and relevant case law. The court held that the executing court has the authority to adjudicate all questions pertaining to right, title, or interest in the property arising between the parties, including claims of a stranger who apprehends dispossession or has already been dispossessed from the immovable property.
Fact of the Case:
The petitioners filed petitions challenging the common order passed by the Court of Prl. Civil Judge, which allowed an additional decree holder to contest the case based on an unregistered will. The case arose from a suit for specific performance of an agreement, which ended in a compromise decree. The respondent filed applications to implead himself as an additional decree holder and contest the case based on the unregistered will.
Finding of the Court:
The court found that the additional decree holder had the right to contest the case based on the unregistered will and that the executing court has the authority to adjudicate all questions pertaining to right, title, or interest in the property arising between the parties, including claims of a stranger who apprehends dispossession or has already been dispossessed from the immovable property.
Issues: The issues included whether the additional decree holder should be permitted to contest the case based on the unregistered will and whether any interference was called for by the court.
Ratio Decidendi: The court held that the executing court has the authority to adjudicate all questions pertaining to right, title, or interest in the property arising between the parties, including claims of a stranger who apprehends dispossession or has already been dispossessed from the immovable property.
Final Decision: The petitions were dismissed, and the executing court was directed to dispose of the matter without any undue delay.
1. The present petitions are filed under Article 227 of Constitution of India challenging the common order dated 9.1.2015 passed by the Court of Prl. Civil Judge (Senior Division), Bangalore in Execution Petition No. 65 of 2010 arising out of the judgment and decree passed in O.S. 674 of 2008.
2. The respondent No. 1 herein is the GPA holder of Smt. Ursila, Sri. Marcose, Sri. John Jeffry and Sri. Keny. Respondent No. 2, Sri. N.H. Krishnamurthy is the applicant in Ex.Pn.65 of 2010 and he had filed 3 applications (1) I.A.1 filed under Order 1 Rule 10(2) of CPC read with Order 21 Rule 97 of CPC to implead himself as an additional decree holder (DHR) (2) I.A.2 filed under Order 16 Rule 1(a) of CPC for permission to furnish the list of witnesses and (3) I.A.4 filed under Section 146 and under Order 21 Rule 16 of CPC to include himself as an additional DHR to contest the case. I.A.3 has been filed by the DHR under Section 151 of CPC to reject the I.A.1 filed Order 1 Rule 10(2) of CPC read with Order 21 Rule 97 of CPC by the applicant.
3. All these applications have been considered together and common order is passed on 9.1.2015 rejecting I.A.3 and allowing I.As.1, 2 and 4. Being aggrieved by the same, decree holders have filed these petitions challenging the correctness and legality of the said impugned order.
4. The facts leading to filing of the execution petition and consequential orders passed on 9.1.2015 are as follows:
Shri N.J. Shivamurthy had filed a suit in O.S. 674 of 2008 for specific performance of agreement against respondent No. 1 to execute the registered absolute sale deed. The said suit ended in a compromise. Shivamurthy died on 20.4.2010 leaving behind the petitioners herein as his legal representatives. Thereafter, petitioners herein had filed an Execution Petition No. 65 of 2010 against Sri. Mark Gomez, GPA holder of the four persons namely Smt. Ursila, Sri. Marcose, Sri. John Jeffry and Sri. Keny seeking to execute the order passed in O.S. 674 of 2008, which ended in a compromise decree on 4.1.2010.
5. Subject matter of the suit bearing O.S. 674 of 2008 is an agricultural land measuring 4.39 acres in Sy. No. 33 (old No. 5/4) of Pattandur Agrahara Village, K.R. Puram Hobli, Bangalore East Taluk. The said suit ended in a compromise on 4.1.2010. On the strength of the said compromise decree, petitioners had filed an execution proceedings requesting the Court to direct the JDRs to execute a regular sale deed in their favour lest the sale deed be executed in their favour through the agency of the Court. Decree Holder Shivamurthy died after the decree and therefore his wife and daughter chose to file the execution petition.
6. Respondent No. 2 Krishnamurthy is the brother of Shivamurthy. According to him, first decree holder Smt. Shashikala, wife of Shivamurthy had deserted her husband and was not looking after him and therefore, Shivamurthy is stated to have bequeathed all the properties he had inclusive of execution petition schedule property through a Will dated 8.4.2010. Thus he is stated to be the owner of all the properties inclusive of execution petition schedule property. Therefore, he filed an application i.e., I.A.1 to implead himself as additional decree holder on the basis of the unregistered will dated 8.4.2010. Therefore, he chose to file an application under Section 146 and under Order 21 Rule 16 of CPC to include him as decree holder and to contest the case. Application I.A.4 came to be filed on 16.7.2014 by Krishnanurthy.
7. The said Krishnamurthy has filed a suit in O.S. 25950 of 2010 before the City Civil Court Bangalore on 29.6.2010 to declare that the will dated 8.4.2010 is binding on the defendants i.e., the decree holders and for relief of permanent injunction in respect of 10 items of immovable property inclusive of execution petition schedule property which is found in item No. 6 of the suit.
8. All the applications filed by the Krishnamurthy, were objected to by filing detailed written
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