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NC: 2023:KHC-K:5531
WP No. 201653 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 201653 OF 2023 (GM-CPC)
BETWEEN:
1.
MANIKAPPA DIED PER LRS.,
A) GUNDAMMA
W/O LATE MANIKAPPA,
AGE: 61 YEARS,
OCC: AGRICULTURE AND HOMEMAKER,
R/O. KUMBARWADA,
BIDAR-585403.
B) NAVEEN KUMAR
S/O LATE MANIKAPPA,
AGE: 48 YEARS, OCC: SERVICE,
R/O. KUMBARWADA,
BIDAR-585403.
C) SHALU KUMARI
D/O LATE MANIKAPPA,
(W/O DHANRAJ),
AGE: 35 YEARS,
OCC: HOMEMAKER,
R/O. KUMBARWADA,
BIDAR-585403.
D) ALISH KUMARI
D/O LATE. MANIKAPPA,
(W/O GEORGE),
AGE: 33 YEARS,
OCC: HOMEMAKER,
R/O. ANADOOR,
TQ. AND DISTRICT. BIDAR-585403.
Digitally signed
by B NAGAVENI
Location: HIGH
COURT OF
KARNATAKA
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NC: 2023:KHC-K:5531
WP No. 201653 of 2023
E) SAPNA KUMARI
D/O LATE MANIKAPPA,
(W/O BHARAT RAJ),
AGE: 31 YEARS,
OCC: HOMEMAKER,
R/O. ANADOOR,
TQ. AND DISTRICT BIDAR-585402.
F) VANDANA KUMARI
D/O LATE MANIKAPPA,
(W/O PRAVEEN KUMAR),
AGE: 29 YEARS,
OCC: HOMEMAKER,
R/O. KUMBARWADA,
BIDAR-585403.
G) ANUJANA
D/O LATE MANIKAPPA,
AGE: 27 YEARS,
OCC: HOMEMAKER,
R/O. KUMBARWADA,
BIDAR-585403.
2.
TIPPANNA
S/O DEVAPPA,
AGE: 46 YEARS,
OCC: AGRICULTURE,
R/O. KUMBARWADA,
BIDAR-585403.
3.
RAJKUMAR S/O DEVAPPA,
AGE: 41 YEARS,
OCC: AGRICULTURE,
R/O KUMBARWADA,
BIDAR-585403.
…PETITIONERS
(BY SRI.KADLOOR SATYANARAYANACHARYA, ADVOCATE)
AND:
1.
RAJAMMA W/O SHANTHKUMAR,
(W/O SHANKER),
AGE: 67 YEARS,
OCC: HOME MAKER,
R/O. H.NO.10-3-32,
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NC: 2023:KHC-K:5531
WP No. 201653 of 2023
KHJAJA ABDJU FAIZ DARGA ROAD,
EDAGERI, BIDAR-585401.
2.
METHRI ANJAMMA
W/O METHRI RAMACHANDAR,
(D/O SHANKER),
AGE: 52 YEARS,
OCC: HOMEMAKER,
R/O H.NO.4-95,
SHJAMSHJALLAPUR,
WADDI,
NYALKAL MANDAL-502251
3.
NANDAMMA W/O SHIROMANI,
(D/O SHANKER),
AGE: 49 YEARS,
OCC: HOMEMAKER,
R/O. H.NO.713,
VILLAGE CHILLARGI,
TQ. AND DISTRICT BIDAR- 585403.
4.
MANJULA W/O ESHAPPA,
(D/O SHANKER),
AGE: 40 YEARS,
OCC: HOMEMAKER,
R/O H.NO.1-124,
CHURCH ROAD, NEAR CHURCH,
SULTANPUR-J,
TQ. AND DIST. BIDAR-585403.
5.
BASAPPA S/O MAREPPA,
AGE: 61 YEARS,
OCC: AGRICULTURE,
R/O. VILLAGE KANTGI,
TQ AND DIST. BIDAR-585401.
6.
MAREPPA
S/O CHANDRAPPA DEAD BY HIS LRS.,
A) NARASING S/O MAREPPA,
AGED MAJOR, OCC: TAILOR,
DEAD BY HIS LRS.,
AS PER ORDER DATED 17-09-2016,
I) NELSON S/O LATE NARSING,
AGED ABOUT 47 YEARS,
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NC: 2023:KHC-K:5531
WP No. 201653 of 2023
OCC: GOVT. SERVANT.
II) NAINAKUMARI
W/O RAMESH (D/O LATE NARSING),
AGED ABOUT 43 YEARS,
OCC: HOMEMAKER,
BOTH R/O. KUMBARWADA,
BIDAR-585403.
III) NANDUKUMARI
W/O YESHAPPA (D/O LATE NARSING),
AGED ABOUT 41 YEARS,
OCC: HOMEMAKER,
R/O. NAGORA,
TQ. AND DIST. BIDAR-585403.
IV) SULOCHANA
W/O JAMES (D/O LATE NARSING),
AGED ABOUT 40 YEARS,
OCC: HOMEMAKER,
R/O KHASEMPUR-K,
TQ. BIDAR-585226.
V) SAIMON S/O LATE NARSING
AGED ABOUT 36 YEARS
OCC: AGRICULTURE
R/O. KUMBARWADA
BIDAR-585403.
VI) MEENAKUMARI
W/O SWAMIDAS (D/O LATE NARASING)
AGED ABOUT 34 YEARS
OCC: HOMEMAKER
R/O. KALBEMALGI
MANDAL NYALKAL
TQ. ZAHEERABAD-502220
VII) SWARUPARANI
W/O ANILKUMAR
(D/O LATE NARSING)
AGED ABOUT 32 YEARS
OCC: HOMEMAKER
R/O. KOUTHA-B, TQ. AURAD-B
DIST. BIDAR-585326.
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NC: 2023:KHC-K:5531
WP No. 201653 of 2023
B)
GYANI S/O MAREPPA
AGE: MAJOR, OCC: PENSIONER
R/O OF KUMBARWADA
ZION COLONY, BIDAR-585403.
C)
SHANTAMMA D/O LATE MAREPPA
(W/O KALLAPPA)
DEAD BY HER LRS.,
AS PER ORDER DATED 17.09.2016
I) KALLAPPA S/O BALAPPA
AGED ABOUT 58 YEARS
OCC: SERVICE IN AIR FORCE, BIDAR
R/O. NAVADGERI, BIDAR-585401.
II) KAVITA D/O KALLAPPA
AGED ABOUT 31 YEARS
OCC: HOMEMAKER
R/O. NAVADGERI, BIDAR-585401.
III) ARJUN S/O KALLAPPA
AGED ABOUT 28 YEARS
OCC: STUDENT, R/O. NAVADGERI
BIDAR-585401
IV )ANAND S/O KALLAPPA
AGED ABOUT 26 YEARS
OCC: STUDENT
R/O. NAVADGERI, BIDAR-585401.
V) AKASH S/O KALLAPPA
AGED ABOUT 22 YEARS
OCC: STUDENT
R/O. NAVADGERI, BIDAR-585401
VI) KIRAN S/O KALLAPPA
AGED ABOUT 21 YEARS
OCC: STUDENT
R/O. NAVADGERI, BIDAR-585401
7.
SUNDRAMMA W/O MAREPPA
AGE: MAJOR,
OCC: AGRICULTURE AND HOMEMAKER
DEAD, AND AS PER ORDER DATED
04.01.2016 ON I.A.NO.VII
NAME IS ROUNDED UP AS
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NC: 2023:KHC-K:5531
WP No. 201653 of 2023
8.
SAIDAPPA @ SAILESH S/O KALLAPPA
AGE: MAJOR
DEAD BY HIS LRS.,
A) TEJAMMA
W/O LATE SAIDAPPA @ SAILESH
AGE: 66 YEARS, OCC: HOMEMAKER
R/O. KUMBARWADA
BIDAR-585403.
B) VINODABAI
D/O SAIDAPPA @ SAILESH
(W/O SHIROMANI)
AGE: 46 YEARS, OCC: HOMEMAKER
R/O. KUMBARWADA
BIDAR-585403.
9.
SHANKAR S/O KALLAPPA
AGE: 71 YEARS, OCC: AGRICULTURE
R/O. KUMBARWADA
BIDAR-585403
…RESPONDENTS
(NOTICE TO RESPONDENTS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
IMPUGNED ORDER AT ANNEXURE-D, DATED 20.02.2023 ON
I.A.NO.II FILED UNDER ORDER XXI RULE 97 OF CPC PASSED IN
E.P.NO.24/2022 PENDING THE FILE OF PRINCIPAL CIVIL JUDGE
AND JMFC BIDAR, AND ETC
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
In view of the order proposed to be passed, notice to
the respondents is dispensed with.
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The petitioners are before this Court seeking for the
following reliefs:
a.
Writ of Certiorari quashing the impugned order at
Annexure-D, dated 20.02.2023 on I.A.No.II filed
under Order XXI Rule 97 of CPC passed in
E.P.No.24/2022 pending the file of Principal Civil
Judge and JMFC at Bidar, in the interest of
justice.
b.
To pass such other writ or orders which the
Hon'ble Court deems fit, considering the facts and
circumstances of the case, to do substantial
justice.
The suit in O.S.No.718/1989 had been filed seeking
for partition which ended up in a decree which came
to be challenged by filing appeal in R.A.No.31/2002,
which
came
to
be
dismissed
on
27.10.2003.
RSA.No.1179/2003 was also dismissed confirming
the judgments of both the Trial Court and the first
appellate Court. A SLP filed in SLP.No.14205/2004
also
came
to
be
dismissed
on
02.08.2004.
FDP.No.6/2003 having been filed, the final decree
was
drawn
up,
which
was
challenged
in
R.A.No.50/2006 and final decree was directed to be
drawn
up
and
the
proceedings
concluded.
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Subsequently, another suit in O.S.No.94/2004 had
been filed by the respondents which came to be
dismissed. Now in the execution proceedings filed in
E.P.No.24/2022 to implement the final decree, the
respondents filed an application under Order XXI
Rule 97 of the Code of Civil Procedure (for short,
hereinafter referred to as ‘ CPC’), claiming that they
have a interest in the properties which was allowed.
It is aggrieved by the same that the petitioners are
before this Court.
Sri.Kadloor Satyanarayanacharya, learned counsel
for
the
petitioners
would
submit
that
while
considering an application under Order XXI Rule 97
of CPC, the Court ought to prima facie consider
whether the objector has made out any interest in
the property or not and if there is no such interest
made out, the application ought to be rejected
without subjecting the parties to a further enquiry. In
this regard, he relies upon the decision of this Court
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in A.Chidambar vs. Leela1 to contend that if the
objector had no interest in the property subject
matter of the execution, an application filed under
Order XXI Rule 97 of CPC is required to be rejected.
In the present matter also, he submits that there
being certain other proceedings between the parties,
the share of the branch of the respondents having
been allotted to them, they cannot have any right in
the properties subject matter of the execution
proceedings. On that basis, he submits that the order
of the Trial Court is required to be set aside.
Heard
Sri.Kadloor
Satyanarayanacharya,
learned
counsel for the petitioners and perused the papers.
Order XXI Rule 97 of CPC provides a methodology for
a person otherwise than a party to the proceedings
to
offer
resistance
or
obstruction
when
the
possession of the property of which he is in
1 ILR 1989 KAR 3230
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possession is sought to be taken over. Whenever
such an application is filed, if there is a prima facie
case made out, then the procedure under Order XXI
Rule 98 to 101 are required to be followed and any
determination thereof would be treated as a decree
of the Court determining all the issues which arise.
In the present case, the contention of learned
counsel for the petitioners is that there is no prima
facie case made out by the objectors as regards the
interest of the objectors in the properties.
A perusal of the application filed indicates that the
objectors claim to have right, title and interest in the
lands covered under Sy.Nos.25, 26 and 27 of
Kumbarwada village, Bidar District, and they claim
that without making them a party to the proceedings
in O.S.No.718/1989, a decree has been obtained
behind their back and they are in joint possession of
the said properties. The subject matter of the
execution proceedings is
also the very
same
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Sy.Nos.25, 26 and 27 of Kumbarwada village, Bidar
Distric
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