Research › Search › Judgment

Karnataka High Court · body

2017 DIGILAW 1307 (KAR)

T. v. Vinay Kumar VS Rohini S. Hegde

2017-09-15

B.VEERAPPA

body2017
JUDGMENT : 1. The objectors are sons of Judgment Debtor No.3 are before this Court against the impugned judgment and decree dated 26.06.2015 made in R.A. No.114/2013 on the file of the V Additional District and Sessions Judge, Shivamogga, sitting at Sagar, dismissing the appeal and confirming the order dated 18.07.2013 made in Ex. No.108/2007 on the file of Senior Civil Judge and JMFC, Sagar, in dismissing the application filed by the present appellants under Order 21 Rule 58 of Code of Civil Procedure. 2. The respondent has filed a suit for recovery of money before the trial Court in O.S. No.92/2001 against M/s. Samrat Adike Mandi, APMC Yard, Sagar and its partners and the father of the present appellants. 3. After contest, the suit came to be decreed. Against the said judgment and decree, the defendants have filed appeal which came to be dismissed. Thereafter, the decree holders filed Execution No.108/2007. During the pendency of the proceedings, the present appellants who are objectors filed application under Order 21 Rule 58 of Code of Civil Procedure stating that the execution petition was filed for execution of the decree and suit schedule property has been attached and they are given to the custody of surety. The immovable properties which are attached belongs to objectors, which requires for their daily life and also contended that their father Sri. T.S. Veerappaiah living separately since 2001 by virtue of partition effected in their family in the presence of the witnesses on 30.03.2001. Accordingly, palupatti was prepared. In the palupatti ‘E’ schedule properties were allotted to the claimants. Mutation was also entered in their names. Therefore, they pray for release of the properties described in the schedule. 4. The said application was resisted by Decree Holder and contended that the very application filed by the objectors is not maintainable and also denied the separation between the objectors and their father including the family partition. 5. Based on the pleadings, the Executive Court framed the following issue to the effect that: “Whether the claim petitioners prove that the movable properties attached in the case belong to them as contended?” 6. The objector No.1/Petitioner No.1 himself examined as PW.1 and one witness examined as PW.2 and got marked the documents as at Exs.P.1 to P.9. 7. 5. Based on the pleadings, the Executive Court framed the following issue to the effect that: “Whether the claim petitioners prove that the movable properties attached in the case belong to them as contended?” 6. The objector No.1/Petitioner No.1 himself examined as PW.1 and one witness examined as PW.2 and got marked the documents as at Exs.P.1 to P.9. 7. After considering the entire material evidence available on record, the Executive Court held that the objector failed to prove that the movable property attached in the case belong to them as contended in the application and accordingly, application came to be dismissed. 8. Against the said order, the present appellants filed R.A. No.114/2013 before the V Additional District and Sessions Judge, Shivamogga sitting at Sagar, who after hearing both the parties, by impugned order dated 26.06.2017 dismissed the appeal and confirmed the order passed by the Executive Court. Hence, the present Execution Second Appeal is filed. 9. I have heard the learned counsel for the parties to the lis. 10. Sri. Mahesh R. Uppin, learned counsel for appellants vehemently contend that both the Courts below have failed to notice that there was an oral partition between appellants and Judgment Debtor No.3 in the year 1999 itself. The oral partition was reduced in writing on 30.03.2001 in the presence of witnesses and it is registered one and in the said partition ‘E’ schedule properties were allotted to the share of the appellants. Accordingly, the mutation was also affected and the appellants paying taxes regularly to the house property have not considered by the courts below. 11. He further contended that both the courts below have failed to notice that the appellant No.1 himself examined as PW.1 and one witness examined as PW.2 and got marked the documents at Ex.P.1 to P.9 to prove their case by adducing oral and documentary evidence and respondent has not led any evidence. Therefore, the Courts below ought to have allowed the application filed by the appellants. The same has not been done. Therefore, he submits that the impugned order passed by the trial Court cannot be sustained. Hence, he sought to allow the Execution Second Appeal. 12. Per contra, Sri. Therefore, the Courts below ought to have allowed the application filed by the appellants. The same has not been done. Therefore, he submits that the impugned order passed by the trial Court cannot be sustained. Hence, he sought to allow the Execution Second Appeal. 12. Per contra, Sri. Kaushik M.S., learned counsel appearing for respondent sought to justify the impugned order and contended that absolutely no material evidence has been produced by the objectors that their father and objectors divided in the year 1999 and it was reduced in writing and the decree made in O.S. No.92/2001 is not binding on these petitioners/appellants. In the absence of the same, the Courts below justified in rejecting the application and confirmed the order of lower Appellate Court and sought for dismissal of the present appeal. 13. Having heard the learned counsel for the parties to the lis, the only point that arises for consideration in the present Execution Second Appeal is: “Whether the judgment and decree passed by the Lower Appellate Court in R.A. No.114/2013 dismissing the appeal and confirming the order passed by the Executive Court dated 18.07.2013 in Ex.No.108/2007 under Order 21 Rule 58 of CPC is justified in the facts and circumstances of the case?” 14. I have given my anxious consideration to the arguments advanced by both learned counsel for the parties and perused the available material on record. It is not disputed that the present respondent has filed original suit in O.S.No.92/2001 against M/s. Samrat Adike Mandi, APMC Yard, Sagar, by its partners including the father of appellants for recovery of money. After contest, the suit came to be decreed. 15. The judgment and decree passed by the trial Court in O.S. No.92/2001 for recovery of money has reached finality. It is also not in dispute that the Decree Holder has filed Execution No.108/2007 to implement the judgment and decree confirmed by the Lower Appellate Court. 16. During the pendency of the Execution petition, the present appellants who are sons of judgment debtor No.3 have filed application under Order 21 Rule 58 of CPC contending that the immovable property sought to be attached belongs to them and the decree passed against their father in O.S.No.92/2001 is not binding on them. The same was resisted. 17. 16. During the pendency of the Execution petition, the present appellants who are sons of judgment debtor No.3 have filed application under Order 21 Rule 58 of CPC contending that the immovable property sought to be attached belongs to them and the decree passed against their father in O.S.No.92/2001 is not binding on them. The same was resisted. 17. In order to substantiate the case, appellant No.1 was examined as PW.1 and one witness examined as PW.2 and got marked the documents at Ex.P1 to P9. The trial Court after considering the entire material on record, recorded the finding that the objectors failed to prove that there was a partition between the Judgment Debtor No.3 and the objectors (present appellants) and the movable properties attached under the execution petition belongs to them. 18. The trial Court further recorded a finding that on perusal of Ex.P.7 and 8 it reveals that the property which has been attached was seized from the house of the JDR No.3. Bailiff attached the property in the presence of panchas and drawn the mahazar. Attachment of warrant has been executed with the assistance of the police. At that time, the JDR No.3 affixed his signature. The present appellants were present and they have signed on the mahazar. Subsequently, the property has been handed over to the custody of the surety by taking bond. In the mahazar, it reveals that the property has been seized from the house of Veerappaiah who is JDR No.3. According to the Objectors, the suit schedule properties belongs to them i.e., DR No.1. In the cross examination of PW.1 admits that except the income derived from land belonged to the joint family. They have no other source. He further deposed that he do not know when his father JDR No.3 becomes the partner of JDR No.1. He deposed that at that time, he was a minor. He also admits that his father is head of the family and partner of JDR No.1 on behalf of the family. He also admits that his father spending amount for the welfare of the children and to meet the family necessity. He admits that there was no misunderstanding between himself and his father and he further deposed that there was a partition in the joint family on 01.03.2001 and one of the partner JDR No.1 is also witness to the partition. He also admits that his father spending amount for the welfare of the children and to meet the family necessity. He admits that there was no misunderstanding between himself and his father and he further deposed that there was a partition in the joint family on 01.03.2001 and one of the partner JDR No.1 is also witness to the partition. He do not know who had written the said partition and the said partition is not a registered partition deed. In the cross examination of PW.1, he has stated that he came to know about the suit only in the year 2007 when the court Ameen visited the house enquiring his father. The Executing Court further held that in the cross-examination, PW-1 deposed that he cannot say from where he purchased the property which has been attached by the Court. He also stated that he has no documents to show that he himself has purchased the property. Further he admitted in the cross-examination that in the ration card, the name of the father and the children are shown that they are residing together and they are having one ration card. He deposed that he had an application for separate ration card, but, not obtained the same, so far. The voters’ list revelas that his father and all the children are residing in the same house. But the said witness says that he has given application about 6 to 7 years back. The Court further observed that he has not produced any documents to show that he had given an application for change of voters’ list in the separate address. 19. The appellant No.2 who was examined as P.W.2, in his cross-examination has admitted that the judgment debtor No.3 is having 8 to 10 houses in the village and he is maintaining good relationship with all the villagers. But, none of the villagers witnessed the partition. He has stated that the oral partition took place on 15.06.1999 but he does not know the property which was partitioned on the said date. He has further stated that the shares allotted to the share holders were noted in the note book. But none of the parties signed on the note book. Subsequently, the partition was effected in writing and registered in the year 2001. The Court below observed that, there was a oral partition in the year 1999. He has further stated that the shares allotted to the share holders were noted in the note book. But none of the parties signed on the note book. Subsequently, the partition was effected in writing and registered in the year 2001. The Court below observed that, there was a oral partition in the year 1999. It came into writing in the year 2001. But it was not registered. Further, the ration card and the voters’ list of the petitioner stands along with his father. 20. The Trial Court further recorded a finding that the family of the judgment debtor No.3 has no other independent source. On the other hand, they are dependant on the income derived from the family property. The petitioners have not produced any evidence to show that the attached property belonged to them. Mere production of assessment extract to show that the house belonged to them is not sufficient to prove that the property belonged to them. On the other hand, P.W.1 himself admitted that the judgment debtor No.3 alone is looking after the welfare of the family and he is spending the amount for the family benefit. The evidence produced by the petitioner is not at all sufficient to hold that the movable property belonged to the petitioners. Accordingly the application filed under Order XXI Rule 58 of Code of Civil Procedure came to be dismissed. 21. The lower appellate Court, on re-appreciation of the oral and documentary evidence on record, recorded a finding that there is no material to establish that there was any partition amongst judgment debtor No.3 and his children. The panchanama prepared by the bailiff who executed attachment of warrant discloses that judgment debtor No.3 and his family members are residing together and even the panchas who were present at that time have confirmed this fact. Even though alleged partition deed came to be executed on 30.03.2001, the names of the petitioners came to be entered to the house property extract only in the year 2011-2012 i.e., shortly after passing of money recovery decree dated 30.01.2006. It is further recorded that, it is not shown why partition deed dated 30.03.2001 was not acted upon immediately and why they have to wait until money recovery decree is passed. These factors clearly indicate that so called partition deed is nothing but an excuse to defeat the purpose of money decree. It is further recorded that, it is not shown why partition deed dated 30.03.2001 was not acted upon immediately and why they have to wait until money recovery decree is passed. These factors clearly indicate that so called partition deed is nothing but an excuse to defeat the purpose of money decree. However, theory of partition and separate possession propounded by the appellants are falsified by the panchanama prepared by the Court bailiff and the version of panchas present at the time of panchanama. Therefore, the lower appellate Court was of the opinion that the learned trial Judge was justified in dismissing the application and accordingly, dismissed the appeal. 22. Both the Courts below have concurrently held that the plaintiffs have not proved that there was partition in the family and the findings recorded by the Courts below is based on the legal evidence on record. Same is in accordance with law. The appellants have not made out any substantial question of law for consideration in this appeal, in exercise of powers under the provisions of Section 100 of the Code of Civil Procedure. Accordingly, Execution Second Appeal is dismissed at the stage of admission.