IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA REGULAR FIRST APPEAL No.2036/2017 BETWEEN:
1. SYED NAVEED AHMED, S/O LATE SYED AZEEM, AGED ABOUT 46 YEARS, RESIDING AT NO.8, SHAMSHUL HAQ BUILDING, VENKATAPPA LANE, CHIKKAMAVULLI BANGALORE 560004.
2. SMT. SYED NIKATH SULTANA, D/O LATE SYED AZEEM, W/O SYED AKHIL SHA MADNI AGED ABOUT 52 YEARS, RESIDING AT NO.214, 17TH CROSS, GOVINDPURA MAIN ROAD, BANGALORE 560 045.
3. ISHRATH SULTANA, D/O LATE SYED AZEEM, W/O RIYAZ AHMED AGED ABOUT 47 YEARS, RESIDING 30(1/7), 1ST MAIN ROAD, BISMILLAHA NAGAR, DHARAMA RAM COLLEGE PO, BG ROAD, BANGALORE 560 029.
4. MUSSARATH SULTANA D/O LATE SYED AZEEM W/O KHAMAR AHMED AGED ABOUT 44 YEARS, RESIDING AT 9/84, MAIN ROAD, 3RD BLOCK, EAST JAYANAGAR, BANGALORE 560 011.
5. ULFATH IFRAN, D/O LATE SYED AZEEM W/O IRFAN AHMED AGED ABOUT 42 YEARS, RESIDING AT 1125, 35TH C CROSS, 4TH T BLOCK, JAYANAGAR, BANGALORE 560 041.
6. SAYEEDA HAJIRA SULTANA, D/O LATE SYED AZEEM W/O SHAFI AHMED AGED ABOUT 38 YEARS, RESIDING AT H.NO.3683/1A, 46/48, 11TH CROSS, ANJANEYA EXTENSION DAVANAGERE 577 004. ... APPELLANTS (BY SRI C. HANUMANTHA RAO, ADVOCATE FOR SRI VISHWANATH H. M., ADVOCATE) AND:
SMT.SUNDARAVATHI AMMAL, SINCE DEAD PER HER LRs., 1. SMT. VIJAYARANI, D/O LATE T.S. DAVID AGED ABOUT 61 YEARS 2. SMT. JAYARANI, D/O LATE T.S. DAVID, AGED ABOUT 51YEARS, RESPONDENT NO. 1 AND 2 ARE RESIDING AT NO.304, 6TH C CROSS, OMBR LAY-OUT, BANASAWADI, BANGALORE 43.
3. THE COMMISSIONER, BANGALORE CITY CORPORATION, BANGALORE.
4. SYED MUYEED AHMED S/O LATE SYED AZEEM AGED ABOUT 53 YEARS, RESIDING AT NO.1, SUSHEELA ROAD,1ST CROSS, DOSSAMAVALLI, BASAVANAGUDI, BANGALORE 4.
5. SYED SHAHEED AHMED S/O LATE SYED AZEEM AGED ABOUT 54 YEARS, RESIDING AT NO.1, SUSHEELA ROAD, 1ST CROSS, DOSSAMAVALLI, BASAVANAGUDI, BANGALORE 4.
6. SMT. SYED SUMRUD JAN W/O LATE SYED AZEEM AGED ABOUT 72 YEARS, RESIDING AT NO.1 SUSHEELA ROAD, 1ST CROSS, DODDAMAVALLI, BASAVANAGUDI, BANGALORE-04.
7. SMT. MUNIYAMMA W/O LATE RAMANNA AGED ABOUT 80 YEARS, SMT. SAKAMMA, W/O CHIKKAYELLAPPA DIED LIVING BEHIND HER RESPONDENTS 8 TO 11 HEREIN 8. SRI.NAGARAJA, S/O LATE CHIKKAYELLAPPA AGED ABOUT 50 YEARS, 9. SRI SRIRAM S/O LATE CHIKKAYELLAPPA AGED ABOUT 45 YEARS, 10. SRI JAGADISH, S/O LATE CHIKKAYELLAPPA, AGED ABOUT 43 YEARS, 11. SRI SRINIVAS, S/O LATE CHIKKAYELLAPPA, AGED ABOUT 29 YEARS, RESPONDENTS 8 TO 11 ARE RESIDING AT NO.14, SREENIVASA KALYANMATAP, 10TH CROSS, SOMESHWARA NAGAR ROAD, WILSON GARDEN, BANGALORE 560027. ... RESPONDENTS (BY SRI T. SESHAGIRI RAO, ADVOCATE FOR C/R1 & R2) …… THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC AGAINST THE ORDER DATED 10.10.2017 PASSED ON IA.NO.1 IN EX.NO.338/2012 ON THE FILE OF THE XL ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE IA.NO.1 FILED UNDER ORDER XXI RULES 97 AND 101 READ WITH SECTION 151 OF CPC.
THIS REGULAR FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the matter is listed for admission with the consent of both the Counsel for the parties, the same is taken up for final disposal.
2. The present appellants, who are alleging to be the son and daughters of original defendant No.2 and objectors before the Executing Court in Execution No.338/2012 have filed the present appeal against the order dated 10th October, 2017 dismissing I.A.1/2016 filed by them under Order XXI Rules 97 and 101 r/w Section 151 of the Code of Civil Procedure, 1908.
3. The present respondent Nos. 1 and 2 – Smt.
Vijayarani and Smt. Jayarani, who are plaintiffs before the trial Court filed O.S.No.7331/1990 for declaration, possession, damages and mandatory injunction in respect of the suit schedule property bearing Khata No. 32, Corporation Division No.54, within Sy.No.25/1B situated at Hosur Road, Arekempanahalli, measuring East to West 59 ft. and North to South 60 ft. contending that they are the owners of the said property . The same was resisted by the defendants therein including the contesting defendants – who are alleged sons and daughters of orginal defendant No.2 – the alleged father.
4. After contest, the trial Court by the judgment and decree dated 1st October, 2010 decreed the suit holding that the plaintiffs are the absolute owners of the suit schedule property and a direction was issued to defendant Nos.2 to 5 to deliver vacant possession of the suit schedule property to the plaintiffs. Further defendant No.1 was directed to revoke the conditional khata made in favour of defendant Nos. 2 to 5 and register the khata in the names of the plaintiffs. Aggrieved by the said judgment and decree, defendant Nos. 2 to11 filed an appeal before this Court in RFA No.88/2011 and this Court after hearing both the parties, by the judgment dated 10.1.2011 dismissed the appeal confirming the judgment and decree of the trial Court.
5. Against which special leave petition i.e., SLP No.20128/2013 was preferred before the Hon’ble Supreme Court and after considering the entire material on record, the Apex Court by the order dated 20th July, 2016 dismissed the SLP confirming the judgment and decree of the Court below which has attained the finality.
6. When the things stood thus, the present appellants claiming to be the legal representatives of the deceased defendant No.2 filed O.S.No. 5565/2016 for cancellation of judgment and decree made in O.S.No.7331/1990 passed by the Additional City Civil Judge (CCH-41), Bengaluru by raising various contentions that the decree obtained was against non- existing property by playing fraud on the defendants as well as the Court. In the said suit, the present respondents are also parties and the same is still pending consideration. In the meanwhile on the very day itself, the present appellants-objector filed the present application I.A.1/16 under Order XX1 Rules 97 and 101 r/w Section 151 of the Code of Civil Procedure to adjudicate their rights in Execution petition pending on the file of the Additional City Civil Judge, Bengaluru. The same was opposed by the respondents- decree holders by filing objections. The trial Court considering the application and objections by the impugned order dismissed the application. Hence the present regular first appeal.
7. I have heard the learned Counsel for the parties to the lis.
8. Sri C. Hanumantha Rao for Sri Vishwanath H.M., learned Counsel for the appellants vehemently contended that the impugned order passed by the trial Court rejecting the application – I.A.1/16 is erroneous and contrary to the material on record. He would further contend that the judgment and decree dated 1.10.2010 passed in O.S.No.7331/1990 was obtained by playing fraud on the Court as well as the defendants and present appellants by the decree holders. He would further contend that the decree obtained by playing fraud before the Court is null and nonest in the eye of law and it cannot be executed on the separate and different property of the applellants’ plots in Sy.No.24 on which property, the decree holders have no semblance of claim.
9. The learned counsel for the appellant further contend that in the guise of obtaining decree in respect of the property bearing Sy.No.25/1B, the decree holders are interfering with their property bearing Sy.No.24, Hosur Road, Arekempanahalli, Kasaba Hobli, Bangalore North Taluk. In support of his contentions, the learned Counsel for the appellants sought to rely upon the judgment of the Hon’ble Supreme Court in the case of Gurnam Singh (dead) through Legal Representatives and Others –vs- Gurbachan Kaur (Dead) by Legal Representatives and Others reported in AIR 2017 SC 2419 to the effect that any decree passed against a dead person is without jurisdiction and nullity in the eye of law. Therefore, he sought to set aside the impugned order passed by the trial Court.
10. Per contra, Sri T. Seshagiri Rao, learned Counsel appearing for caveators/respondent Nos.1 and 2 – decree holders, sought to justify the impugned order passed by the trial Court rejecting the application filed by the present appellants – I.A.1/16 filed under Order XXI Rules 97 and 101 r/w Section 151 of the Code of Civil Procedure. He would further contend that the appellants/objectors have simultaneously filed the very application and O.S.No.5565/2016 on the very same day i.e., 1.8.2016 and therefore, the appellants cannot seek parallel remedy in the guise of original suit filed under Order VII Rule 1 r/w Section 26 of the Code of Civil Procedure and another one in the form of application – I.A.1/2016 under Order XXI Rules 97 and 101 r/w Section 151 of the Code of Civil Procedure.
Hence it amount to two suits primarily which is impermissible under law. He would further contend that the original defendants have contested the suit and the trial Court considering the entire material on record has declared that the plaintiffs are the owners and hence, granted the decree as prayed for, which has been confirmed by this Court in RFA No.88/2011 on 23.11.2012 and reaffirmed by the Hon’ble Supreme Court in SLP No..20128/2013 on 20.7.2016.
11. Therefore, the learned Counsel for the respondent further contended that either the Executing Court or this Court cannot go beyond the decree and it is not open for any of the parties to reopen the case which has ended and it is virtually functus officio. He would further contend that a memo came to be filed after the death of the original defendant No.2 before the trial Court stating that defendant Nos. 3 to 5 are the legal representatives of the original deceased defendant No.2. The trial Court treating defendant Nos. 3 to 5 as the legal representatives of deceased defendant No.2 has proceeded further to decree the suit. At that time, defendant Nos. 3 to 5 did not object to the memo one filed by the plaintiffs therein. If really the present appellants were the children of defendant No.2, defendant Nos. 3 to 5 in O.S.no.7331/1990 would not have conceded to the said memo which goes to show that the appellants are unrelated to the deceased defendant No.2. Therefore, he contended that the contention of the learned Counsel for the appellants cannot be accepted. It is also contended that the present appellants have also filed a suit for cancellation of decree passed in O.S.No.7331/1990 and it is for them to establish their case in accordance with law independently.
12. In support of his contentions, he further contended that if an oblivious objections/application is filed under Order XXI Rules 97, 99, 100 and 101 of the Code of Civil Procedure, the Executing Court has to reject such frivolous application in view of the judgment of the Hon’ble Supreme Court in the case of Bool Chand (Dead) Through Legal Representatives and Others –vs- Rabia and Others reported in (2016)14 SCC 270 and the judgment of this Court in RFA No.1304 between Mr. Srinivas and Others –vs- Mr. C. Anand and Others (D.D. 19.9.2016) wherein this Court has held that when a suit has already been filed claiming partition of certain properties including the property which was also the subject matter of the application filed under Order XXI Rule 97 of the Code of Civil Procedure, parallel proceedings is not maintainable and also in the case on hand. Therefore, he sought for dismissal of the regular first appeal.
13. Having heard the learned Counsel for the parties, the points that arise for consideration in the present appeal are:
i) Whether the original suit as well as the application under Order XXI Rules 97 and 101 r/w Section 151 of the Code of Civil Procedure filed parallelly and simultaneously are maintainable in the facts and circumstances of the present case ?
ii) Whether the trial Court is justified in rejecting the application filed by the appellants in the facts and circumstances of the present case?
14. I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record carefully.
15. It is an undisputed fact that the present respondents, who are decree holders filed O.S. No.
7331/1990 for declaration, recovery of possession and mandatory injunction in respect of the property bearing No.32 situated in Corporation Division No.54, Hosur Road, Bengaluru measuring East to West 59 ft., and North to South 60 ft. After contest, the suit came to be decreed declaring that the plaintiffs are the absolute owners of the suit schedule property with a direction to defendant Nos. 2 to 5 to deliver vacant possession of the suit schedule property to the plaintiffs; defendant No.1 to revoke the conditional khata made in favour of defendant Nos.2 to 5 in respect of suit schedule property and to register the khata in the names of plaintiffs. It is also an undisputed fact that against the said judgment and decree, defendant Nos. 3 to 5 filed an appeal – RFA No.88/2011 before this Court and this Court after hearing both parties, by the judgment dated 23.11.2012 dismissed the appeal confirming the judgment and decree passed by the trial Court.
16. It is also an undisputed fact that as against the judgment and decree passed by both the trial Court as well as this Court, defendant Nos. 3 to 5 preferred Special Leave Petition before the Hon’ble Supreme Court in SLP No.20128/2013 and the Hon’ble Supreme Court after hearing both parties, by the order dated 20.7.2016 dismissed the appeal, confirming the judgment and decree of the trial Court and this Court in appeal. It is also not in dispute that after the matter reached finality upto the Hon’ble Supreme Court, now the present appeal is filed by the objectors claiming their right under the original deceased defendant No.2 alleging that they are his son and daughters; and they have filed a suit – O.S. 5565/2016 for cancellation of the judgment and decree dated 1.8.2016 made in O.S.No.7331/1990. Admittedly the said suit is still pending. If it is so, it is unknown how the present appellants simultaneously filed suit and the application under Order XXI Rules 97 and 101 r/w Section 151 of the Code of Civil Procedure in Execution Petition No. 338/2012 filed by the decree holders to implement the original decree which has reached upto the Supreme Court and has attained finality.
17. The trial Court after considering the entire material on record, recorded a specific finding that on going through the contentions of the applicants in the present I.A., in the light of other circumstances of the case, it finds that already the suit filed by the plaintiffs has been decreed after contest by defendant Nos. 2 to 5 and other defendants; that the matter has been agitated before this Court in RFA as well as before the Supreme Court in Special Leave Petition and the contentions taken by the applicants in the present application have been considered by the trial Court while disposing O.S.No.7331/1990.
18. The trial Court on going through the decision dated 24.4.2017 passed in RFA No.2017/2016, in the case of Srinivas & Others –vs- C. Anand & Others (DB), recorded a finding that the principles laid down in the said case is applicable to the facts and circumstances of the present case also. Defendant Nos. 2 to 5 have contested the claim of the plaintiffs in original proceedings and also appeal before this Court and the Hon’ble Supreme Court; that the judgment and decree passed in the suit has attained finality; that apart, the applicants have filed O.S.No.5565/2016 praying for cancellation of judgment and decree passed in O.S.NO.7331/1990 as the same has been obtained by playing fraud by the decree holders and therefore, the application filed under Order XXI Rules 97 and 101 r/w Section 151 of the Code of Civil Procedure is not maintainable. Accordingly, the application came to be dismissed.
19. When it is not in dispute that the present appellants have already filed the suit – O.S.No.5565/2016 for cancellation of judgment and decree passed in O.S.No.7331/1990, it is for them to establish independently the fraud played by the decree holders in O.S.No.7331/1990 and they cannot parellely proceed at one breath - filing the suit and at another - filing an application under Order XXI Rules 97 and 101 r/w Section 151 of the Code of Civil Procedure.
20. The Hon’ble Supreme Court while considering the provisions of Order XXI Rules 97, 99 and 101 of the Code of Civil Procedure in the case Bool Chand (Dead) Through Legal Representatives and Others –vs- Rabia and Others reported in (2016) 14 SCC 270 has held that while a genuine petition for execution of a decree can certainly be considered, the court cannot be oblivious of frivolous objections being filed after a decree is passed in long-drawn contested proceedings. Attempt to deprive the decree-holder of benefit of such decree should be discouraged by the court where such objection is raised.
The impugned order is thus, clearly erroneous and unsustainable and not a result of sound judicial approach.
21. Admittedly, in the present case the appellants having approached the Court in comprehensive suit and after passing of the decree in O.S.7331/1990 which has also attained the finality, filing application under Order XXI Rules 97 and 101 r/w Section 151 of the Code of Civil Procedure is frivolous and nothing but daring raid of the Court parellely which is impermissible under law.
22. The other contentions raised by the learned Counsel for the appellants that any decree passed against a dead person is without jurisdiction and nullity, has to be decided in the suit already filed by the present appellants in O.S. 5565/2016. Since the same is objected by the learned Counsel appearing for the decree holder stating that a memo was filed to the effect that all the legal representatives are already on record, whether the present legal representatives are already on record or not, has to be adjudicated in the comprehensive suit now filed. Therefore, the law declared by the Hon’ble Supreme Court in the judgment relied upon by the learned Counsel for the appellants is not squarely applicable to the facts and circumstances of the present case.
23. It is further contended that having obtained the decree in respect of Sy. No.32, Corporation Division 54 situated at Hosur Road, Arekempanahalli, measuring East to West 59 ft. and North to South 60 ft., now the decree holders in the guise of obtaining the decree are trying to interfere with possession of the property of the present appellants i.e., Sy.No.24 of Arekempanahalli Village, Kasaba Hobli, Bangalore North Taluk. If that is so, it is needless to observe that it is for the appellants to take care and to protect their property with all force and in accordance with law.
24. In view of the foregoing facts, the first point raised in the present appeal has to be answered in the negative holding that the present appellants/objectors cannot maintain an application under Order XXI Rules 97 and 101 r/w Section 151 of the Code of Civil Procedure when the suit has already been filed i.e., O.S.5565/2016 for cancellation of the decree made in O.S.No.7331/1990. In that view of the matter, the second point raised in the present appeal is answered in the affirmative holding that the trial Court was justified in rejecting the application filed under Order XXI Rules 97 and 101 r/w Section 151 of the Code of Civil Procedure. The appellants have not made out any ground to interfere with the impugned order passed in the present appeal in exercise of appellate jurisdiction under Section 96 of the Code of Civil Procedure.
25. However, it is needless to observe that the trial Court shall not be influenced by any of the observations made by the Executing Court while deciding I.A.1/2016 and this Court while deciding the present appeal in any way, either of the parties in establishing their right independently in O.S.No.5565/2016 pending between the parties in accordance with law.
26. It is also made clear that any further proceedings in the Execution Petition No.338/2012 shall always be subject to the result of the suit – O.S.NO.5565/2016 pending between the parties. All the contentions raised in the present appeal are left open to be urged by both the parties.
Accordingly, Regular First Appeal is disposed of.
Sd/-
Judge Nsu/-