Court confirms dismissal of execution applications, finding no error in lower courts’ reasoning regarding third-party rights.

(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA)

Appellants have preferred this appeal against the order dated 30^th September 2020 passed in Execution Petition No.88 of 2012 by the Additional Senior Civil Judge & JMFC, Hospete (for short hereinafter referred to as “the trial Court”) on Applications IA.11 and 12 filed by third party claimants under Order XXI Rules 58, 97, 99 and 101, read with Section 151 of Code of Civil Procedure , which is confirmed by the III Additional District & Sessions Judge, Ballari (sitting at Hosapete) (for short hereinafter referred to as “the appellate Court”) vide judgment dated 01^st December 2023, in Execution Appeal No.5001 of 2020.

2. For the sake of convenience, the parties herein are referred to as per the status and rank before the trial Court.

3. Brief facts leading to appeal are that the Respondent No.2-decree holder filed suit OS No.21 of 2013 seeking relief of specific performance of contract against the respondent No.1- judgment debtor. The said suit came to be dismissed whereby it was ordered for a refund of earnest money. Against the dismissal of the Suit, the decree holder filed appeal before this court in RFA No.517 of 2007. This court, considering the appeal on merits, by its judgment and decree dated 09^th February 2012, allowed the appeal by decreeing the suit. Being aggrieved by the judgment and decree, the judgment debtor filed special leave petition before the Hon’ble Supreme Court in SLP No.30571 of 2012. The Special Leave Petition came to be dismissed by the Supreme Court on 30^th October 2012. Being aggrieved by the same, the judgment debtor filed review petition in RP No.1183 of 2013.

4. When things stood thus, the learned Additional Senior Civil Judge and JMFC, Hosapete, considering the applications of the appellants on merits, dismissed the applications. Being aggrieved by the dismissal of applications, the appellants preferred Regular Execution Appeal in No.5001 of 2020 before the III Additional District & Sessions Judge, Ballari. The appeal came to be dismissed by judgment and decree dated 01^st December 2023. Being aggrieved by the impugned judgment and decree dated 01^st December 2023, appellants are before this court in this second appeal.

5. Sri Preetham Correa, learned Counsel appearing on behalf of Sri Shivaraj C Bellakki, would submit that the impugned judgment and decree passed by the trial Court as well as the first appellate Court are erroneous and much against the pleadings and evidence on record. He would submit that both the courts have concurrently erred in not appreciating the fact that appellants have claimed independent right, and the decree sought to be executed, will affect their rights as they have their undivided share. The decree for specific performance would not bind them, and thus the applications were not maintainable. He would further submit that the Courts below have concurrently erred in not appreciating the scope and ambit of Order XXI Rule 97 of Code of Civil Procedure , which enables the appellants to intervene and obstruct the execution of trial Court. The executing Court should have given finding whether the suit property purchased by deceased D Kullayappa in the name of his son who had just attain majority and had no source of income, or was it an absolute property of the judgment debtor. In the absence of the said finding, it cannot be held that the appellants claim under the judgment debtor so as to oust them from obstructing the execution. On all these grounds, the learned Counsel would seek to admit the appeal on the substantial question of law questioning the orders passed by both the courts.

2. I have carefully examined the reasons assigned by the trial Court as well as the appellate Court while dismi