JUDGMENT :

C.M. Poonacha, J.

The above first appeal is filed under section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') by the Plaintiff - Decree Holder challenging the order dated 14.9.2018 passed in Execution No.66/2011 by the Principal Senior Civil Judge and CJM, Mysuru, (hereinafter referred to as the 'Executing Court'), whereunder the Executing Court has allowed the Application filed by the Applicant/Obstructor to the decree under Order XXI Rule 97 of the CPC.

2. For the sake of convenience, the parties herein are referred to as per their rank before the Trial Court.

3. The facts in brief necessary for adjudication of the above appeal are that a suit in OS No.395/2003 was filed by one Indra Kumari (hereinafter referred to as Plaintiff/Decree Holder) against her brother Udayakumar (hereinafter referred to as Defendant/Judgment Debtor) for partition and separate possession. The suit was decreed vide judgment and decree dated 12.6.2008 wherein it was held that the Plaintiff and Defendant are entitled to 50% share each in the suit properties. The judgment and decree passed by the Trial Court was challenged by the Defendant in RA.No.215/2008, which appeal was dismissed. Consequently, the Plaintiff initiated final decree proceedings in FDP No.23/2008 which was allowed and the final decree for partition was drawn vide order dated 24.2.2010. To execute the said decree, the Plaintiff filed Execution No.66/2011. In the said proceedings, an application was filed on 19.1.2013 by one Javanamma under Order XXI Rule 97 of the CPC obstructing the delivery of the schedule premises to the Decree Holder and sought for dismissal of the Execution Petition.

3.1. It is the case of the Obstructor that the suit property belonged to one Ashirvadam and his wife Rathnamma who are Christians by religion and were issueless. That Ashirvadam died intestate on 19.2.1981 leaving behind his wife Rathnamma as his sole legal heir who inherited the property by way of intestate succession. That the said Rathnamma expired on 25.4.2001.

3.2. That Rathnamma had no issues and had fostered the Plaintiff - Indra Kumari and the Defendant - Udayakumar. That though they were fostered by late Rathnamma, they did not have any vested right over the property. That Rathnamma during her life time executed a Will on 16.3.2001 bequeathing a portion of the property to the Decree Holder and other portion/s to the Judgment Debtor and his children. That upon the death of Rathnamma, the respective persons inherited their respective portions in terms of the said bequest.

3.3. It is the case of the Obstructor that Ashirvadam and Rathnamma could not have adopted the Decree Holder and Judgment Debtor because adoption and fostering is alien to Christianity and the parties to the suit could not have inherited the suit property by way of intestate succession. That by suppressing the facts, the Decree Holder in collusion with the Judgment Debtor instituted a suit for partition and separate possession for her alleged half share in the suit property, wherein the Decree Holder - Plaintiff claimed that she is the daughter of deceased Ashirvadam and Rathnamma and the Judgment Debtor was her brother. That in the said suit, false pleas of inheritance by way of intestate succession were made.

3.4. It is the specific case of the Obstructor that during the pendency of Regular Appeal, the children of the Defendant - Judgment Debtor, vide registered Sale Deed dated 26.2.2009 (Document No.15657/2008) sold the property