IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.153/2019 (RES) BETWEEN:
SHANKAR TALKIES REPRESENTED BY ITS MANAGING PARTNER SRI TEJAS M. SAIT S/O LATE S.M.MANJUNATH AGED ABOUT 38 YEARS R/O BEHIND TRAVELLERS BUNGLOW CHITRADURGA – 577 501 … APPELLANT (BY SRI A. KESHAVA BHAT, ADVOCATE) AND:
1. SRI K.G.VENKATESH S/O SRI GOPALAKRISHNA AGED ABOUT 57 YEARS R/AT NO.2557, LAKSHMI BAZZAR CHITRADURGA – 577 501 2. H.S.PREMA D/O LATE SATHYANARAYANA SHETTY AGED ABOUT 63 YEARS R/AT THYAGARAJA BEEDI IYYANNANAPET, II BLOCK WARD NO.V, CHITRADURGA CITY – 577 501 3. H.S.LEELAVATHI D/O LATE SATHYANARAYANA SHETTY AGED ABOUT 60 YEARS R/AT THYAGARAJA BEEDI IYYANNANAPET, II BLOCK WARD NO.V, CHITRADURGA CITY – 577 501 4. K.S.SHASHIREKHA D/O LATE SATHYANARAYANA SHETTY AGED ABOUT 72 YEARS R/AT NO.623, MEENAKSHINAGAR 1ST MAIN ROAD, KHB COLONY BASAVESWARANAGAR BANGALORE – 560 079 …RESPONDENTS (BY SRI T.SESHAGIRI RAO, ADVOCATE FOR C/R1) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 21.12.2018 PASSED BY THE COURT OF 1ST ADDL. DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN RA NO.77/2018 AND THEREBY AFFIRM THE ORDER DATED 13.07.2018 PASSED BY THE COURT OF II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHITRADURGA ON I.A.NO.5 IN EXECUTION PETITION NO.148/2015.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT “Whether the appellant is entitled to an enquiry for determining its right, title or interest as contemplated under Order 21 Rule 101 of Code of Civil Procedure, 1908” is the question involved in this case.
This appeal of obstructer arises out of the order dated 13.07.2018 passed by the II Additional Senior Civil Judge and JMFC, Chitradurga in Execution Petition No.148/2015 which was further carried to the Court of the I Additional District Judge, Chitradurga in RA No.77/2018 which was disposed of on 21.12.2018.
2. Respondent No.1 filed EP No.148/2015 before the II Additional Senior Civil Judge and JMFC, Chitradurga against respondent Nos.2 to 4 for execution of the judgment and decree dated 26.11.2008 passed by the II Additional Senior Civil Judge, Chitradurga in OS No.155/2000 against respondent Nos.2 to 4 for specific performance of agreement of sale dated 07.08.1993.
3. Subject matter of the suit was the property consisting of cement sheet roofed shop, hotel and vacant site premises bearing municipal khata No.486, Assessment No.4895/4398-A measuring 65 ft. 8 inches East to West and 34½ ft. North to South within the limits of Chitradurga. The said property was part and parcel of an area of 175 ft. x 175 ft. in that khata numbers.
4. The appellant firm was a tenant under one Sri Sahukar Veerabhadrappa under the Lease agreement dated 04.06.1941. Again on 13.05.1946 under the registered lease deed, Sahukar Veerabhadrappa let out the entire property in favour of the appellant for a term upto 04.06.1997.
5. One Sri H.S.Satyanarayana Setty purchased a portion of the property under occupation of the appellant under the registered sale deed dated 01.12.1959. The appellant filed O.S.No.166/1979 against said H.S.Satyanarayana Setty for declaration that Sri H.S.Satyanarayana Setty was a tenant under the firm and the sale deed in respect of plot Nos.2 and 3 executed in favour of Sri H.S.Satyanarayana Setty do not enable him to seek possession of the property till 04.06.1997.
6. The appellant firm in the said suit contended that by virtue of sale deed in his favour H.S.Satyanarayana Setty is trying to construct building, obstructing it’s rights and sought for injunction against the said obstruction and for recovery of the rent collected by Sri H.S.Satyanarayana Setty in respect of tenants Jayanthilal and Rajappa Setty who were claiming that they were the tenants of the plaintiffs.
7. The Principal Munsiff, Chitradurga decreed OS No.166/1979 in favour of the present appellant. Aggrieved by the said judgment, Sri H.S.Satyanaraya Setty filed RA No.61/1987 before the Civil Judge, Chitradurga. Sri H.S.Satyanarayana Setty died on 25.10.1987. The legal heirs of Sri H.S.Satyanarayana Setty, the present respondent Nos.2 to 4 prosecuted the appeal in RA No.61/1987.
8. The learned Civil Judge allowed RA No.61/1987 on 21.08.1995 reversed the judgment of the trial Court and dismissed OS No.166/1979 filed by the present appellant. Respondent Nos.2 to 4 herein entered into registered agreement of sale with respondent No.1 Sri K.G.Venkatesh on 07.08.1993 agreeing to sell the subject matter of the execution petition as aforesaid for a consideration of Rs.6,90,000/- and received Rs.3,00,000/- as advance consideration.
9. Judgment and decree in RA No.61/1987 was challenged before this Court in RSA No.58/1996. When RSA No.58/1996 was pending, suppressing the agreement of sale in favour of respondent No.1, respondent Nos.2 to 4 entered into a compromise with the appellant firm. Under the said compromise, respondent Nos.2 to 4 agreed to sell an area of 18 ft. x 34.6 ft. out of the property purchased by Sri H.S.Satyanarayana Setty under the registered sale deed dated 01.12.1959. There is no dispute that the very same property is the subject matter of the present litigation i.e. the application filed by the appellant under Order 21 Rule 97 of CPC.
10. The compromise between appellant and respondent Nos.2 to 4 was recorded on 07.02.1998 and a compromise decree was accordingly drawn by this Court in RSA No.58/1996. Thereafter, respondent No.1 filed OS No.155/2000 against respondent Nos.2 to 4 for specific performance of agreement of sale dated 07.08.1993.
11. In the said suit, respondent No.1 filed IA No.5 to implead the appellant as additional defendant contending that the appellant is in possession and it is necessary to implead him to enable him to execute the decree against the appellant. The appellant filed objection and opposed the said application. II Additional Senior Civil Judge, Chitradurga rejected the said application holding that the proposed defendant has no vested right, title or interest over the suit property, he only stepped into the shoes of the defendants, if at all the plaintiff succeeds, the proposed defendant is bound by the decree passed in the suit.
12. On adjudication, OS No.155/2000 was decreed on 26.11.2008. Respondent Nos.2 to 4 challenged the said judgment and decree in RA No.2/2009 before the Additional District Judge, Chitradurga, which came to be dismissed on 23.03.2010. Respondent Nos.2 to 4 challenged the said judgment in RSA No.1779/2010 and this Court dismissed the appeal on 20.10.2014. However, this Court directed respondent No.1 to pay an additional sum of Rs.15,00,000/- as additional consideration.
13. Respondent No.1 deposited Rs.15,00,000/- and other balance consideration in the suit on 13.01.2015 before the trail Court. Respondent Nos.2 to 4 challenged the judgment and decree passed by this Court in RSA No.1779/2010 before the Hon’ble Supreme Court in SL.P.No.16165/2015 which came to be dismissed as withdrawn on 14.09.2015. Thus, the judgment and decree passed in OS No.155/2000 against respondent Nos.2 to 4 attained finality with modification on payment of additional sum of Rs.15,00,000/-.
14. Respondent No.1 filed Execution Petition No.148/2015 against respondent Nos.2 to 4 before the II Additional Senior Civil Judge & JMFC, Chitradurga to execute the Judgment and decree passed in O.S.No.155/2000 which was affirmed with some modification as aforesaid. In the said Execution Petition, the appellant filed I.A.No.V under Order 21 Rule 97 to 99, 101 and 102 read with Section 151 of CPC and claimed to be in possession of the property in his independent right, on the following rights.
i) He has purchased the part of the schedule property by virtue of the compromise decree in R.S.A. No.58/1996 dated 07.02.1998;
ii) The subject matter of the decree is lost for road widening and nothing is left for the decree holder to execute. But the decree holder is claiming the objectors property as the subject matter of the decree;
iii) Objector was a tenant under Sahukar Veerabhadrappa. Unless his tenancy is terminated in accordance with law, he cannot be dispossessed.
15. Objector filed additional affidavit claiming that adjudication is required to determine his rights. The decree holder opposed the application. The trial Court on hearing the parties, by order dated 13.07.2018, dismissed the application summarily holding that the application does not call for any enquiry. The I Additional District & Sessions Judge, Chitradurga by the impugned order dated 12.10.2018 in R.A.No.77/2018 confirmed the order of the Executing Court.
16. Sri A.Keshava Bhat, learned Counsel for the appellant seeks to assail the impugned judgment and orders of the Courts below on the following grounds.
i) The appellant was the lessee of the disputed properties and therefore, it was in possession of the property in its own right;
ii) By virtue of the compromise decree in R.S.A.No.58/1996 independent rights have accrued to the appellant and therefore, it cannot be dispossessed;
iii) The decree holder himself in his application filed under Order 1 Rule 10 of CPC in O.S.No.155/2000 admitted the possession of the objector;
iv) When the objector is in possession in his independent right it was mandatory for the Court to hold an enquiry on the right of the objector, having regard to the Order 21 Rule 101 of CPC.
17. In support of his contention he seeks to rely on the following judgments:
1. Shreenath and another v. Rajesh and others in [AIR 1998 SC 1827] 2. Messrs. Paramound Industries vs. C.M. Malliga in [ILR 1991 KAR 254] 18. Per contra, Sri T.Seshagiri Rao, learned counsel for respondent No.1 opposes the admission of the appeal on the following grounds:
i) The appellant has no independent right to oppose the decree as an objector;
ii) The appellant and respondent Nos.2 to 4, suppressing the fact of the registered agreement of sale in favour of respondent No.1, entered into a compromise wherein the appellant purportedly purchased the property for which the obstruction petition is filed. Such conduct amounts to playing fraud on the Court;
iii) The appellant did not execute the compromise decree in R.S.A.No.58/1996 thereby he has lost right to execute the said decree due to bar of time limitation;
iv) The appellant was not at all the lessee under H.S.Satyanarayana Shetty;
v) The original owners of the property and the appellant suppressing pendency of Execution Petition No.148/2015 filed pre-litigation case No.585/2017 and entered into compromise in the said petition. Under the compromise, appellant purportedly delivered the possession of the property in dispute to the owners. He later filed this obstruction application. Thus he cannot claim that he is in possession of the property;
vi) Apparently the obstruction application was an attempt to protract the proceedings and did not make any ground to go for enquiry. Therefore, Courts below were justified in dismissing application and the appeal.
19. In support of his contention he seeks to rely on the following judgment:
1. Bool Chand (dead) through legal representatives and others vs. Rabia and others [(2016)14 SCC 270].
20. This being the second appeal under Section 100 of CPC, the same can be admitted for hearing only if the appellant satisfies the Court that there is substantial question of law in the matter for consideration. What is the substantial question of law is expounded by the Apex Court in Santosh Hazari –vs- Purushottam Tiwari (Dead) by LRs. – [AIR 2001 SC 965] as under:
“14: A Point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be ‘Substantial’ a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law ‘involving in the case’ there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.”
(Emphasis supplied) 21. Thus it is clear that on the question of facts the first appellate Court is the last Court. Further, all questions of law are not substantial questions of law. Only such question of law which is not settled and debatable and goes to route of the matter can be called substantial question of law.
22. According to the learned counsel for the appellant, Order 21 Rules 99, 100 and 101 of CPC requires the Court to conduct an enquiry.
23. The scheme of Order 21 Rules 97 to 103 of CPC shows that whenever a person obstructs execution of decree, decree holder can file an application for removal of such resistance. On such application, Order 21 Rules 99 and 101 of CPC require the Court to hold an enquiry. But later, Order 21 Rule 97 was interpreted to cover the application filed by the obstructor who is in possession, claiming independent right in property.
24. In Sreenath’s case referred to supra relied upon by the learned Counsel for the appellant, it was held that the obstructor was claiming to be tenant of the property whose right was independent of the judgment debtor. Therefore, it was held that an enquiry as required under Order 21 Rule 97 of CPC is necessary.
25. Order 21 Rule 98 sub rule-2 of CPC reads as follows:
“Where, upon such determination, the Court is satisfied that, the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation, or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, it shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the Court may also, at the instance of the applicant, under the judgment- debtor, or any person acting at his instigation or on his behalf, to be detained in the civil prison for a term which may extend to 30 days.”
26. Karnataka High Court amendment to Order 21 Rule 99 of CPC under Notification No.ROC No.2526/1959 dated 09.02.1967 reads as follows:
“99. Where the Court is satisfied that the resistance or obstruction was occasioned by any person (other than those mentioned in Rule 98) claiming in good faith to be in possession of the property on his own account or on account of some person other than the judgment-debtor, the Court shall make an order dismissing the application.”
27. On perusal of Order 21 Rule 99 shows that the obstructor must be a person in possession of the property of his own account to claim an enquiry for determination of his right.
28. Now the question is whether the appellant’s right was independent of the judgment debtor. The appellant claimed that the appellant was the lessee of the disputed property on its own claim. The term of the lease was upto 1997. Sri H.S.Satyanarayana Setty was the predecessor in title of respondent Nos.2 to 4. Said Sri H.S.Satyanarayana Setty purchased the property from the lessors of the appellant/original owners.
29. It was contended in the affidavit filed in support of the application, that OS No.166/1979 against Sri H.S.Satyanarayan Setty was filed by the appellant for specific performance of agreement. But the records produced by both sides show that O.S.No.166/1979 was filed by the appellant against Sri H.S.Satyanaryana Setty for declaration that it is a tenant of the plaint schedule property and Sri H.S.Satyanarayana Setty has no right to evict it upto 04.06.1997 i.e. till the completion of the term of the lease etc.
30. The said suit was decreed on 24.07.1987. The judgment and decree of the trial Court in OS No.166/1979 was reversed by the Senior Civil Judge, Chitradurga in RA No.61/1987 on 21.08.1995 and the suit of the appellant was dismissed.
31. The appellant challenged the said decree in RSA No.58/1996 before this Court. By that time, respondent Nos.2 to 4 had entered into registered agreement of sale in respect of the very same property with respondent No.1. However, suppressing that fact, the parties in RSA No.58/1996 entered into a compromise which culminated into the decree passed by this Court on 07.02.1998. By that time, the term of the lease of the appellant had expired.
32. In the compromise decree itself, it is stated that respondent Nos.2 to 4 herein have sold the property in occupation of one M.R.Subbanna (which is the subject matter of this appeal) to the appellant. The recitals in the compromise decree further show that the said M.R.Subbanna had suffered eviction order which was confirmed by this Court in HRRP No.1638/1996 and he had to vacate the said premises by 26.11.1998. By such the compromise decree in RSA No.58/1996, the character of the appellant being the lessee was clearly transformed to that of the purchaser/owner.
33. The appellant did not choose to execute that decree till this date. Now that is barred by time. Even assuming for arguments sake, the appellant was tenant of the suit schedule property by virtue of the compromise decree, he lost that character since he agreed to purchase the property from the heirs of Sri H.S.Satyanarayana Setty. He stepped into the shoe of the judgment debtor in this case. Therefore appellant’s right cannot be called an independent right and thereby does not call for any enquiry for determining his right as required under Order 21 Rules 97, 99, 100 and 101 of CPC.
34. So far as the contention that the decree holder himself admitted in the impleading application that the appellant is in possession of the property, the said contention itself does not confer any independent right on the appellant. In OS No.155/2000 while adjudicating on IA No.5 in para 8 of the order it was held as follows:
“8. ............... These issues have nothing doing with proposed parties as they are neither parties to the agreement nor they have any vested right, title and interest over schedule property. In case of decree of suit, then plaintiff steps into shoes of defendants on record who are admittedly the owners of schedule property and the rights in all are being enjoyed by the defendants can be enforced by the plaintiff against 3rd parties ”
35. Therefore, first of all in the impleading application filed in OS No.155/2000, respondent No.1 did not claim that the present appellant is in possession and has an independent right. Even otherwise, the observations of the Court in the order on the application for impleading referred to supra, show that claim of the appellant was through the defendants. Any such plea of respondent No.1 in O.S.No.155/2000 merged into the order. Under such circumstances, there is no merit in the contention that respondent No.1 himself admitted that the appellant is in possession of the property in its own right.
36. The suit for specific performance was pending since 2000. The decree holder after fighting long litigation upto Supreme Court could succeed in final adjudication of his right in 2015. Unfortunately, dismissal of the application for impleading made the matter more complex. The parties indulged into abuse of process of Court in getting compromise decree in RSA No.58/1996 by suppressing the material fact.
37. It was brought to the notice of this Court, even after withdrawal of Special Leave Petition before the Supreme Court and pending this execution petition, heirs of Sahukar Veerabhadrappa, the original owner of the property and the present appellant indulged into filing of PLC No.583/2017 before the District Legal Services Authority, Chitradurga. In that petition, purportedly the original owner sought possession of the property in dispute and they entered into compromise even in that case. In that compromise petition/decree, the appellant claims to have handed over the possession of the subject matter of this appeal to the petitioners in PLC case i.e. the heirs of Sahukar Veerabhadrappa. Under the circumstances absolutely there was no case to go for an enquiry under Order 21 Rule 97, 99, 100 and 101 of CPC.
38. The Supreme Court in Bool Chand’s case referred to supra has held that the enquiry as contemplated under Order 21 Rule 97 is only in respect of the genuine petition and not frivolous objections. The application of the objector in this case is fully covered under Bool Chand’s case.
39. No substantial question of law is made out.
Having regard to the facts and circumstances of the case, the application was totally vexatious and abuse of process of the Court. This appeal is also abuse of process of Court.
Therefore, dismissed with costs of Rs.10,000/-. In view of dismissal of the appeal, IA No.1/2019 filed for stay does not survive and stands disposed of accordingly.
Sd/- JUDGE KG/KSR