IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE B. VEERAPPA WRIT PETITION NO.11205 OF 2019 (GM-CPC) BETWEEN:
SRI. C. YATHISH S/O. LATE B.D. CHIKKANNA SHETTY AGED ABOUT 51 YEARS R/AT OLD NO.573, NEW NO.573/19, 1ST ‘A’ MAIN ROAD SRINAGARA, B.S.K. 1ST STAGE BENGALURU-560 050. ... PETITIONER (BY SRI. ABHINAY Y.T., ADV. FOR SRI. SANJAY GOWDA N.S., ADV.) AND:
1. SMT. A.S. SAVITHARI W/O. A.K. SAMPATH AGED ABOUT 52 YEARS R/AT NO.13/11, 3RD CROSS SHARATH CHANDRA RESIDENCY KATHRIGUPPE MAIN ROAD B.S.K. 3RD STAGE BENGALURU-560 085.
2. SRI. VEDAGIRI CHANDRASHEKAR NAIDU S/O. CHANGALRAY NAIDU AGED ABOUT 57 YEARS R/AT NO.1082, 16TH CROSS B.S.K. 2ND STAGE BENGALURU-560 085. … RESPONDENTS (BY SRI. SANJAY NAIR, ADV. FOR R2 VIDE ORDER DATED 21.03.2019 NOTICE TO R1 IS DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 19.02.2019 PASSED ON I.A.NO.2 IN EXECUTION PETITION NO.573/2014 BY THE XXII ADDITONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU (CCH.NO.7) (ANNEXURE-D) AND CONSEQUENTLY DISMISS THE I.A.NO.2 IN ITS ENTIRETY.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner-Decree holder has filed the present writ petition against the order dated 19.2.2019 passed on I.A.No.II in Execution Petition No.573/2014 by the XXII Additional City Civil and Sessions Judge at Bengaluru, allowing the application filed by the applicant-judgment debtor to permit him to be impleaded as respondent No.2 to contest the matter.
2. The decree-holder filed O.S.No.4916/1998 against the judgment debtor and others for partition and separate possession on 23.6.1998. After contest, the suit came to be decreed in part on 24.2.2007 holding that plaintiff and defendant No.2 are entitled to 4/9th share each and defendant No.3 is entitled to 1/9th share in items 1 to 4 and 6 of the suit schedule. Further, plaintiff is held entitled to 1/3rd share in item No.4 and defendant No.2 is held entitled to ½ share in item No.5. Defendant No.3 is held entitled to 1/6th share in item No.5. Further, plaintiff and defendants 2 and 3 are held entitled to 1/3rd share each in item No.7 of the suit schedule properties. The said decree passed by the trial Court was subject-mater of appeal before this Court in RFA.No.1397/2011. The appeal came to be dismissed on 20.4.2012, which was subject-mater of special leave to appeal in 35981/2013 and the Supreme Court dismissed the same on 9.12.2013.
3. Thereafter, the decree holder filed the execution petition to implement the decree. During the pendency of the execution proceedings, R-2-applicant filed an application I.A.No.2 under Order 21 Rule 97 read with Section 151 of CPC contending that Smt.A.S. Savithri- judgment debtor is the absolute owner of the Execution ‘A’ Schedule house and the same is let out to him on lease for a period of six years by executing the lease agreement in his favour on 8.6.2005 by receiving the lease amount of Rs.2,00,000/-. Subsequently, the lease period has been extended for another six years by enhancing the lease amount of Rs.3,00,000/-. Later on 25.07.2015 the respondent approached him to vacate the schedule house immediately. Therefore, the applicant was forced to file O.S.No.6888/2015 seeking relief of permanent injunction as against the decree- holder and the respondent-judgment debtor in respect of the Execution ‘A’ schedule property, which came to be decreed on 21.07.2016. The Executing Court considering the application and the objections filed, by the order dated 19.2.2019 allowed the application. Hence, the present petition is filed.
4. I have heard the learned counsel for the parties to the lis.
5. Sri.Abhinay.Y.T., learned counsel for the decree-holder contended that the impugned order passed by the executing Court to allow the application of the applicant is erroneous and contrary to the material on record. He would further contend that admittedly, the final decree has been drawn by the trial Court which has been confirmed not only by this Court but also by the Hon’ble Supreme Court. Admittedly, the second respondent was not claiming independent right and was basically claiming a right under the first respondent who had unsuccessfully lost the battle right upto the Supreme Court. Therefore, the trial Court ought not to have allowed the application. He would further contend that in execution proceedings no person can ever be impleaded so as to enable him to contest the matter. The applicant is not a necessary party to resolve the dispute between the parties. The trial Court had passed an injunction order on 2.4.2011 in the FDP and had restrained the first respondent from putting up any construction on the decreetal property and also prevented the first respondent-judgment debtor from changing the nature of the property. Therefore, he sought to allow the writ petition.
6. Per contra, Sri.Sanjay Nair, learned counsel for the judgment debtor sought to justify the impugned order contending that Ex.No.573/2014 filed by the decree-holder to implement the decree is only in respect of 4/9th share as per the decree in O.S.No.4916/1998 dated 24.2.2007. The judgment debtor-first respondent who inducted the applicant was allotted the share as determined by the Commissioner, which was subject matter of writ petition before this Court in W.P.No.48009/2017 and this Court dismissed the writ petition accepting the Commissioner’s report filed before the Executing Court. Therefore, he submits that the applicant is necessary and property party to protect his right. He would further contend that though he was inducted in 2005 during the pendency of the original suit, when the decree-holder and the first respondent tried to interfere with his possession, the present applicant was forced to file O.S.No.6888/2015 seeking relief of permanent injunction as against the decree- holder and the respondent-judgment debtor in respect of the Execution ‘A’ schedule property, which came to be decreed on 21.07.2016. Therefore, he sought to dismiss the writ petition.
7. Having heard the learned counsel for the parties, it is undisputed fact that the present petitioner filed suit for partition and separate possession on 20.6.1998 in respect of only the suit schedule house.
During the pendency of the proceedings, the judgment debtor-respondent No.1 herein inducted the applicant in the year 2005. After contest, the suit came to be decreed on 24.2.2007 declaring that the plaintiff and defendant No.2 are entitled to 4/9th share and the judgment debtor-Savithri is entitled to 5/9th share. The matter has reached upto the Supreme Court and the Hon’ble Supreme Court finally dismissed the SLA in 35981/2013 on 9.12.2013. It is also not in dispute that in the execution petition No.573/14 the trial Court accepted the Commissioner’s report dated 14.9.2017 wherein the Commissioner made division of 5/9th share of the judgment debtor. It is also not in dispute that the impleading applicant also filed O.S.No.6888/15 against the decree-holder and the judgment debtor which came to decreed on 21.7.2016 and it has reached finality. In view of the above, at least he is entitled to protect his possession under 5/9th share of judgment-debtor- Savithri. Admittedly, he has paid an amount of Rs.5,00,000/- according to the judgment debtor and Rs.6,00,000/- according to the decree-holder.
8. The Executing Court considering the application filed by the impleading applicant-respondent No.2 under Order 21 Rule 97 of CPC has recorded a finding that the proposed respondent No.2 contends that he is inducted as tenant by the first respondent- owner for a period of six years accepting security deposit of Rs.2 lakhs and it was extended for another six years enhancing the security deposit by another three lakhs. Thus, three lakhs security deposit lies with the first respondent. When the decree-holder and the judgment debtor tried to oust him illegally, he filed original suit for permanent injunction, which came to be decreed on 21.7.2015. Therefore, he is necessary and proper party in the present execution proceedings. Accordingly, the application came to be allowed.
9. The material on record clearly depicts that he was inducted in the year 2005 in respect of the house property by the judgment debtor- Savithri and she has executed two separate lease deeds and received some security deposit and it is in view of the injunction operating against both the decree-holder and the judgment debtor, he is necessary and proper party to the extent of 5/9th share as determined by the Court Commissioner and possession has to be taken only in due course of law as observed in the original suit. In view of the same, the impugned order passed by the executing Court is just and proper. No ground is made out to interfere with the same in exercise of power under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed.
10. Since the suit has been decreed in 2007 and we are in 2019, the executing Court is directed to expedite the case in accordance with law subject to co- operation of the learned counsel for the parties.
Sd/- JUDGE *alb/-