Execution of an agreement concerning joint family property requires partition; unpartitioned property cannot be alienated without the agreement of all co-owners.

JUDGMENT :

C.M. Poonacha, J.

The present appeal is filed under Order 43 Rule 1(r) of Code of Civil Procedure, [hereinafter referred to as 'CPC'] calling in question the order dated 20.02.2025 passed in Ex.No.27/2024 on the application filed by the respondents No.1 and 2 herein under Order 39 Rule 2 of CPC by the learned Addl. Senior Civil Judge and JMFC, Kunigal[ hereinafter referred to as 'Executing Court' ] wherein the Executing Court has allowed the application and restrained the decree holders/appellants herein from dispossessing the objectors from the execution schedule property till the disposal of the objector application.

2. The relevant facts in a nutshell leading to the present appeal are that the appellants instituted a suit in OS No.170/2024 for specific performance of an agreement of sale dated 15.04.2024. The respondents No.3 to 8 were arrayed as defendants No.1 to 6 in the said suit. The parties to the suit entered into a compromise dated 7.6.2024, wherein the defendants agreed to execute the sale deed within ten days and the suit was decreed in terms of the compromise. To execute the compromise decree passed in OS No.170/2024, Ex.No.27/2024 was filed by the appellants herein.

3. In the said execution petition, through a Court Commissioner, a sale deed dated 12.11.2024 has been executed in favour of appellants/decree holders herein. On 30.11.2024, the appellants sought to file a memo before the Executing Court recording full satisfaction of the decree sought to be executed. On the said date, the respondents No.1 and 2 herein filed an application under Order XXI Rules 58, 97, 98, 99, 101 read with under Section 151 of CPC objecting to the execution of the decree. The said respondents No.1 and 2 also filed an application under Order XXXIX Rule 2 read with Section 151 of the CPC to restrain the decree holders, his agents, from dispossessing them from possession of the execution schedule property. The appellants, who are the decree holders, objected to the said application. The Executing Court by order dated 20.2.2025 allowed the said application and passed the following:

"ORDER

I.A. filed by the objector U/o 39 Rule 2 of CPC is hereby allowed.

The DHRs are hereby restrained from dispossessing the objectors from schedule property till disposal of the objector application.

No order as to costs"

4. Being aggrieved, the present appeal is filed.

5. Heard the learned counsel, Sri K R Ramesh, for the appellant, and the learned counsel Sri Krishnamurthy M R, for the respondents No.1 and 2.

6. It is the vehement contention of the learned counsel for the appellants that, the Executing Court has gone beyond the scope of execution proceedings in injuncting the decree holders and submits that, having regard to the fact that the decree holders sought to file a memo recording satisfaction of the decree, the execution proceedings ought to have been closed by the Executing Court. It is contended that the Executing Court erred in allowing the application filed by the respondents No.1 and 2 herein.

7. Per contra, the learned counsel for the respondents No.1 and 2, while justifying the order passed by the Executing Court, contends that the agreement of sale dated 15.4.2024 has been executed by the children and grand-children of the propositus, Doddahonnaiah through his second wife. That the respondents No.1 and 2 are the son and daughter-in-law through the first wife of the propositus. It is further contended that admittedly, the execution schedule property, which is the subject matter of agreement of sale dated 15.4.2024, was the joint family property of Dodda