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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M. NAGAPRASANNA, J.
M. Abdul Kareem S/o Late S.M. Muneer – Petitioner
Versus
State of Karnataka – Respondent
Writ Petition No. 3837 of 2023
Decided On : 02-03-2023
Code of Civil Procedure, 1908 - Order XXI Rules 58, 92(4) 97, 101, 103, Order I Rule 10, (3), Order 21, Section 47, 151 - Agreement of sale - Suit for specific performance - Petitioners are before Court calling in question order passed by LXXII Additional City Civil and Sessions Judge filed by respondents 6 to 11 – Apex Court records that decree-holder is deprived of fruits of litigation and judgment-debtor, in abuse of process of law, is allowed to benefit from subject matter which he is otherwise not entitled to - Para 16.
Finding of the Court: On a coalesce of afore-narrated dates and events what would unmistakably emerge is that efforts of petitioners is to somehow stall decree holders’ getting fruits of decree - Petitioners are legal heirs of purchaser of suit property pendente lite i.e. during execution proceedings - All these issues have been clearly gone into by civil Court and coordinate Bench of this Court - Yet, those orders do not form part of writ petition filed - It is respondents 6 to 11 who have filed statement of objections appending every order that has been passed - Apex Court clearly holds that Court exercising jurisdiction under Section 47 or under Order 21 of CPC must not issue notice on application of a third party claiming right in a mechanical manner - Court should refrain from entertaining any such application that has already been considered by Court while adjudicating suit - Apex Court also notices that there is steady rise of proceedings akin to a retrial at time of execution, causing failure of realization of fruits of decree and relief which party seeks from Court despite there being a decree in their favour.
Result: Petition dismissed.
ORDER :
1. The petitioners are before this Court calling in question order dated 14-02-2023 passed by the LXXII Additional City Civil and Sessions Judge, Mayo Hall, Bangalore in Execution Petition No. 15061 of 2006 on I.A. No. 4 of 2023 filed by respondents 6 to 11.
2. Brief facts that lead the petitioners to this Court in the subject petition, as borne out from the pleadings, are as follows:
3. After all the aforementioned proceedings a registered sale agreement was executed on 10-03-2006 by Sri D. Syed Younus represented by his GPA holder in favour of one S.M. Muneer, father of petitioner Nos. 1, 3, 4 and 5 and husband of the 2nd petitioner. Pursuant to the sale agreement absolute sale deed also comes to be registered on 28-02-2008 in favour of the said S.M. Muneer.
4. After dismissal of aforementioned civil appeals, the decree holders/legal representatives of Sri B.R. Rangaswamy in whose favour R.F.A. No. 374 of 1989 came to be allowed decreeing the suit, filed Execution Case No. 15061 of 2006 before the concerned Court. After filing of execution case by the decree holders, it appears that the 1st petitioner also files a suit against Sri D. Syed Younus for injunction in O.S. No. 1535 of 2010 and had secured a decree of permanent injunction. On 17-06-2020, the said Sri S.M. Muneer, husband of the 2nd petitioner and father of petitioner 1, 3, 4 and 5 dies. On 16-02-2021 in the execution petition filed by the decree holders, the 1st petitioner files an application for determination of his claim under Order XXI Rules 58, 97, 101 and 103 of the CPC. The application filed by the 1st petitioner in the said execution petition comes to be dismissed on 04-10-2021. The 1st petitioner, against the said dismissal, files a regular first appeal in R.F.A. No. 1177 of 2021 which also comes to be dismissed on 15-11-2022. After exhausting these proceedings, a suit is filed by the 1st petitioner in O.S. No. 6526 of 2022 for declaration and injunction which is pending consideration before the concerned Court.
5. During the pendency of the said suit, the petitioners filed another application in Execution case No. 15061 of 2006 in I.A. No. 1 of 2022 under Order I Rule 10 of the CPC to implead themselves as respondents in the execution case and another application in I.A. No. 2 of 2022 under order XXI Rule 29 of the CPC for stay of execution proceedings. In terms of an order dated 05-01-2023, the concerned Court rejects the application seeking impleadment into the proceedings filed under Order 1 Rule 10(3) r/w Order XXI Rule 92(4) of the CPC with costs of Rs. 25,000/-. The order dated 05-01-2023 was challenged before this Court in Writ Petition No. 1173 of 2023 which is said to be pending consideration.
6. On 25-01-2023 the executing Court directs execution of the sale deed in favour of the decree holders in respect of the suit schedule property which the petitioners claim that it belonged to them. It is then, the petitioners have moved the civil Court in O.S. No. 6526 of 2022 for declaration and injunction and also seeking a temporary injunction against the decree holders. The concerned Court on 09-02-2023 grants a temporary injunction in
Court exercising jurisdiction under Section 47 or under Order 21 of CPC must not issue notice on application of a third party claiming right in a mechanical manner.
Bonafide purchasers without notice of an original agreement can challenge a decree in a separate suit, as the Execution Court cannot adjudicate on the decree's collusiveness.
The court reinforced that obstruction claims in execution proceedings must be heard to uphold rights, ensuring adherence to natural justice principles.
The court affirmed that disputes regarding execution of decrees must be resolved by the executing court, and allegations of fraud must be substantiated with evidence.
(1) To avoid controversies and multiple issues of a very vexed question emanating from the rights claimed by third parties, Court must play an active role in deciding all such related issues to the ....
The executing court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order, which is to be treated as a decree. T....
The main legal point established in the judgment is the interpretation of the provisions of Order 21 Rule 58 and Order 21 Rule 97 of CPC, emphasizing the maintainability of a claim petition after com....
Rule 97 read with Rule 101 of Order 21 post amendment wherein the executing court has to determine under Rule 101 Order 21 of the Code that the question raised has legally arisen between the parties ....
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