dated

06.04.2013

passed

in

Ex.No.12/2006 on the file of Senior Civil Judge at Harihara by

allowing this appeal with costs throughout, in the interest of

justice and equity.

This

Appeal

having

been

heard

through

Physical

Hearing/Video

Conferencing

Hearing

and

reserved

on

22.12.2021 at Principle Bench, Bengaluru and coming on for

pronouncement of Judgment before Dharwad Bench, this day,

the Court delivered the following:

JUDGMENT

The appellants herein were the applicants before the

Court of learned Senior Civil Judge, at Harihar (hereinafter for

brevity referred to as `Executing Court’), in Execution Petition

No.12/2006 and are the sons and daughter of the present

respondent No.2, who is the judgment debtor (hereinafter for

brevity referred to as `JDR’). The appellants herein had filed

IA.No.X and IA.No.XII under Section 47 and under Order XXI

Rule 58 and 97 of Code of Civil Procedure, 1908 (hereinafter for

brevity

referred

to

as

`CPC’),

for

determination

and

adjudication of their shares, right, title and interest in the land

bearing Survey No.21/2P2, measuring 17 guntas and Survey

No.21/3P3, measuring 1 acre 17 guntas, situated at Kotemallur

4

Village, in Honnali Taluk, which lands had been sold in a public

auction

for

enforcement

of

decree

passed

in

O.S.No.14/2003 by the Court of learned Senior Civil Judge, at

Harihara. The present respondent No.1 was the decree holder

(hereinafter for brevity referred to as `DHR’), who had filed the

said Execution Petition for recovery of a sum of `1,30,003/-

against the JDR. The present appellant Nos.1, 3 and 4 are the

sons and appellant No.2 is the daughter of the JDR, who is

respondent No.2 herein.

2. The contention of the applicants, who are the

appellants herein, in their application before the Executing

Court was that the Execution Petition scheduled properties are

the ancestral properties of the applicants and the JDR. The said

properties came to the JDR in a partition as per MR 32/1998-

99. The DHR and JDR were colluded in obtaining a decree in

O.S.No.14/2003. The JDR was addicted to bad habits like

drinking alcohol, gambling etc., The DHR has misused the said

weakness of the JDR and has obtained the decree in

O.S.No.14/2003 though JDR had not obtained any loan from

him. The applicants further contended that the JDR is not the

absolute owner of the schedule properties though those two

5

properties had fallen to the share of JDR in a family partition

which had taken place between himself and his brothers. The

applicants and JDR are having 1/5^th share each in the schedule

properties. The DHR and JDR by colluding each other, brought

the shares of the applicants’ properties also for sale causing

injury and hardship to the applicants. The applicants further

contended that they have also filed a suit in O.S.No.200/2008,

on the file of the learned Civil Judge, Honnali, for partition and

separate possession of their 1/4^th share each in the schedule

properties. In the said case, DHR has filed an application to

implead him as defendant No.2. With this, they contended that

their shares in the suit schedule properties are not liable for

sale.

3. The DHR filed his objections to both the applications by

contending that the applications are devoid of merits. He

denied that the nature of properties sold in auction are

ancestral properties and that the applicants had any right, title

or interest in those properties. However, he admitted of the

applicants filing a suit in O.S.No.200/2008 seeking for partition.

Stating that the applications have been filed only to drag on the

6

proceedings to defeat the fruits of the decree obtained by the

DHR, he prayed for dismissal of the applications.

4. Considering the nature of the dispute between the

parties, the Executing Court adjudicated the dispute as per the

procedure prescribed under Order XXI Rule 101 of CPC. During

the enquiry, one of the applicant was examined as PW-1, who

also examined one Sri Maheshappa as PW-2 and got marked

document