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2023 Supreme(Kar) 1138
IN THE HIGH COURT OF KARNATAKA
V.Srishananda, J.
Honnappa – Appellant
Versus
K.V. Thimmappa – Respondent
Regular First Appeal No. 2273 of 2007(Res)
Decided On : 24-08-2023
M.Shivaprakash, Advocate, Chandan S.Rao, Advocate
An applicant claiming independent rights in execution proceedings under Order 21 Rule 97 must establish that those rights pertain to the same property involved in the original decree; failure to do so results in dismissal of the application.
Headnote:
EXECUTION - CIVIL PROCEDURE - Order 21 Rule 97, Section 151 of CPC - The court discussed the provisions of Order 21 Rule 97 of the Code of Civil Procedure, which allows a person claiming an independent right to the property in execution proceedings to file an application. The court interpreted that the applicant failed to establish any independent right over the property in question, which influenced the decision to dismiss the appeal.
Fact of the Case:
The decree holder obtained a sale deed for a property from the original judgment debtor, Siddalingappa, in 1975. After various litigations, the decree holder successfully obtained a decree for possession in 2000. The applicant claimed rights over the property through a sale deed executed by Siddalingappa's heirs in 1997 and filed an application under Order 21 Rule 97 to protect his claimed rights during the execution of the decree.
Finding of the Court:
The Trial Court found that the applicant failed to demonstrate any independent right to the property that was the subject of the decree in O.S.No.1808/1984. The court concluded that the applicant's claim was not maintainable as the property he claimed was different from that involved in the original suit.
Issues: 1) Whether the appellant has established an independent right over the property subject to O.S.No.1808/1984? 2) What order should be passed regarding the appeal?
Ratio Decidendi: The court held that the applicant's claim did not pertain to the same property as that involved in the original decree, and thus, he had no standing to seek restoration of property in the execution proceedings. The court emphasized that the remedy for the applicant lay elsewhere, not in contesting the decree.
Final Decision: The appeal was dismissed as meritless, with the court affirming the Trial Court's decision and clarifying that the dismissal would not affect the applicant's rights against Siddalingappa's legal heirs regarding the property mentioned in the 1997 sale deed.
JUDGMENT
1. Heard Sri M. Shivaprakash, learned counsel for the appellants and Sri Chandran S. Rao, learned counsel for respondent No.1.
2. The present appeal is filed challenging the validity of the order passed by the learned XIV Additional City Civil Judge in execution No.929/2001 which is filed to execute the decree passed in O.S.No.1808/1984 dismissing the application filed under Order 21 Rule 97 of Code Civil Procedure dtd. 12/10/2007.
3. Parties are referred to as decree holder, judgment debtor and applicant as per their original ranking in the Trial Court.
4. Decree holder obtained the sale deed from Sri Siddalingappa who is the original judgment debtor on 12/5/1975 in respect of property which is a site bearing No.2, situated in Sanegoravanahalli Gramatana, Yaswantpura Hobli, Bengaluru, measuring East to West 44 feet, North to South 30 feet, demarcated by letters 'ABCD' in the suit sketch, bounded on East by Shivanna site, West by 30 feet road of CITB, North by site No.3 belonging to Hanumayya and South by site No.1 of Siddalingappa.
5. After purchase of the site, there were few litigations between the vendor of the decree holder and decree holder inasmuch as the vendor of the decree holder said to have executed a power of attorney and said power of attorney wanted the cancellation of the sale deed which was subject matter of O.S.No.1110/1982. Said suit after contest came to be dismissed for default on 11/2/1986.
6. In the meantime, since there was an interference by the vendor of the decree holder. As such, decree holder had filed a suit in O.S.No.1808/1984 which was contested by Siddalingappa and came to be decreed on 30/10/2000. The vendor of the decree holder filed an appeal in RFA 173/2001 on the file of this Court which on contest came to be dismissed on 4/7/2001.
7. Subsequently, the decree passed in O.S.No.1808/1984 was put into execution and sought for possession of the suit property by removing the encroachment thereon. Said execution petition was also been contested by the vendor of the decree holder and by virtue of the order dtd. 8/4/2002, the decree holder took possession of the property. Later on, the applicant who is the appellant before this Court filed an application on 6/1/2003 seeking an order of protection claiming that he is having right over the suit schedule property which is subject matter of execution petition No.929/2001 by filing an application under Order 21 Rule 97 of Code of Civil Procedure. The applicant claims right over the said property by virtue of the sale deed executed by the wife and children of Siddalingappa through power of attorney holder Smt. Parvathamma. Siddalingappa said to have died on 31/3/1997 leaving behind Munirathnamma and Kumara as his legal heirs. The sale deed of the applicant is registered on 7/12/1997. The schedule mentioned in the sale deed executed by Munilakshmamma, Kumara and Parvathama, the property that has been sold is gramatana khatha No.19/287 and property bearing No.103 with a construction of two square A.C. sheet house measuring East to West 45 feet, North to South 30 feet, bounded on East by private property, West by road, North by remaining property of Siddalingappa and South by road.
8. The Trial Court entertained the application under Order 21 Rule 97 and decree holder filed his objection to the said application. Enquiry was held on the application thereafter. One Honnappa is examined as P.W.1 and K.V. Thimmappa is examined as R.W.1. Rough sketch of the suit property is marked as Ex.R.1.
9. The learned Trial Judge in the execution side, heard the parties and thereafter in detail has recorded a specific finding that the application filed by the applicant/appellant who is also termed as obstructer, has failed to make out any independent right in respect of the property which is the subject matter in O.S.No.1808/1984 and dismissed the application.
10. Being aggrieved by the same, the third party obstructer/appellant has filed the present appeal with th
