&

DECREE

DTD

10.4.2015

PASSED

IN

R.A.NO.565/2014 ON THE FILE OF THE VI ADDL. DISTRICT &

SPECIAL

JUDGE,

MYSURU,

DISMISSING

THE

APPEAL

AND

CONFIRMING THE ORDER DATED 30.10.2014 PASSED ON IA NO.III

IN EX.NO.182/2008 ON THE FILE OF THE PRL. JUDGE, COURT OF

SMALL CAUSES, MYSORE, DISMISSING THE APPLICATION FILED

UNDER ORDER XXI RULE 97, 98, 100, 101, 103 AND 104 R/W

SEC.151 OF CPC.,

3

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT ON 29.09.2022, COMING ON FOR PRONOUNCEMENT OF

JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

The captioned second appeal is filed by the unsuccessful

third party obstructor wherein both the Courts have rejected

the application filed under Order 21 Rule 97 of CPC.

2.

The facts leading to the case are as under:

The respondent/decree holder filed a suit for specific

performance of contract based on an agreement to sell dated

23.10.1986. The decree holder was compelled to file a suit for

specific performance in O.S.No.73/1987. Pending suit, the

respondent/decree

holder

herein

secured

an

order

of

attachment before judgment. The Trial Court on examining

the material on record partly decreed the suit ordering for

refund of advance sale consideration. The decree holder

preferred an appeal in RFA.No.408/1991. This Court allowed

the appeal and set aside the judgment and decree of the Trial

4

Court and consequently, granted discretionary relief of specific

performance. While the connected appeal filed by the original

judgment debtor in RFA.No.38/1992 was dismissed. The

respondent/decree holder initiated execution proceedings in

Ex.P.No.169/2000. The original decree holder obtained sale

deed through Court Commissioner.

3.

The

present

third

party

applicant

filed

an

application in Ex.P.No.169/2000 and thereby resisted the

execution proceedings. The third party application was dealt

with by the Executing Court and the same was rejected.

Having suffered an order at the hands of the Court, the

present third party applicant filed suit for specific performance

on 27.11.2002 in O.S.No.478/2002. The suit was filed against

two legal representatives of original judgment debtor. The

said suit was not contested and the suit for specific

performance filed by third party applicant was decreed. The

third party applicant based on exparte decree passed in

O.S.No.478/2002, it appears the legal representatives of

5

original judgment debtor have executed sale deed on

16.07.2008 in terms of exparte decree.

4.

The present execution petition is filed by the legal

heirs of deceased decree holder seeking possession of the

schedule premises which was the subject matter of suit for

specific performance filed by the original decree holder. The

present third party applicant again filed a third party

application asserting title over the property in question based

on exparte decree passed in O.S.No.478/2002 and consequent

sale deed dated 16.07.2008. The said application was

strongly resisted by the legal heirs of original decree holder.

The legal heirs of original decree holder contended that similar

application filed under Order 21 Rule 97 of CPC was rejected in

earlier

Execution

Petition

No.169/2000

and

therefore,

contended that the present application is hit by principles of

res judicata. The decree holder also contended that the third

party applicant was aware of the decree passed in favour of

the decree holder in O.S.No.73/1987 has secured a collusive

6

decree by filing a collusive suit in 2002. Therefore, the decree

holders claimed that the third party applicant cannot resist the

handing over of possession and therefore, prayed for dismissal

of the third party application.

5.

The Executing Court having examined the evidence

let in by both the rival parties declined to entertain the third

party application and consequently, the same was rejected.

6.

Feeling aggrieved by the order passed by the

Executing Court, the third party applicant preferred appeal in

R.A.No.565/2014.

7.

The Appellate Court having