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2019 DIGILAW 1232 (KAR)

Hema Malini v. Jayalakshmamma

2019-06-13

B.V.NAGARATHNA, K.NATARAJAN

body2019
JUDGMENT : B.V. Nagarathna, J. Though these appeals are listed for admission, with the consent of learned counsel on both sides, they are heard finally. 2. For the sake of convenience, the parties shall be referred to in terms of their status in Execution Case No.76 of 2013 out of which these appeals arise. 3. Succinctly stated, the facts are, the respondent Nos.1 to 4 herein are decree holders. Late Venkatesh, husband of decree holder No.1 and father of decree holders No.2 to 4 had filed O.S. No.119 of 2009 seeking recovery of monies due to him. The said suit was later renumbered as O.S. No.86 of 2012. The suit was decreed by judgment and decree dated 03.08.2013. Against which, judgment debtors No.2 and 3 have preferred R.F.A. No.1739 of 2013 before this Court which is pending adjudication. In the meanwhile, the decree holders initiated execution proceedings in Execution Case No.76 of 2013 on the file of the Senior Civil Judge and J.M.F.C., Channapattana. In the execution petition, the decree holders filed schedule of properties which was sought to be attached and sold for the recovery of decretal amount. 4. It is the case of appellant herein who is the objector, who filed an application under Order XXI Rule 97 of the Code of Civil Procedure, 1908 (for short, 'C.P.C.') that, she is the owner and in possession of Item Nos.3 and 4 of the schedule properties. The appellant in R.F.A. No.78 of 2017 also filed an application under Order XXI Rule 97 of C.P.C. contending that under partition deed Item No.5 of the suit schedule property was allotted to him. In the circumstances, the applications were considered by the Executing Court and by order dated 14.12.2016 the said applications were dismissed. Being aggrieved, the objector have preferred R.F.A. No.66 of 2017 and R.F.A. No.78 of 2017. Since they arise out of the same Execution Case No.76 of 2013, they are clubbed, heard together and disposed of by this common judgment. 5. We have heard learned counsel for the appellant and learned counsel for respondent Nos.1 to 4 decree holders and respondent Nos.6 and 7 in both the appeals and perused the material on record as well as I.A. No.1 of 2017 filed for additional documents. 6. 5. We have heard learned counsel for the appellant and learned counsel for respondent Nos.1 to 4 decree holders and respondent Nos.6 and 7 in both the appeals and perused the material on record as well as I.A. No.1 of 2017 filed for additional documents. 6. Appellant's counsel contended that the Executing Court was not right in dismissing the applications filed by the appellant herein under Order XXI Rule 97 of C.P.C. That the appellants herein are the owners of the respective properties. They are not the judgment debtors, their properties have been erroneously included in the schedule to the Execution Petition and in order to execute the judgment and decree passed in O.S. No.86 of 2012, their properties were sought to be attached. At that stage, apprehending the threat of attachment, the applications were filed. The Executing Court has observed that since the documents of title were not produced in evidence, no relief could be granted to them and the applications have been dismissed. He contended that although the documents of title were not produced before the Executing Court, nevertheless the Encumbrance Certificates were produced by both the appellants which have not been considered and appreciated in their proper perspective. In the circumstances, the appellants have filed I.A. No.1 of 2017 before this Court producing certified copy of the gift deed dated 22.10.2008 in respect of Item Nos.3 and 4 of the schedule properties which were gifted to the appellant in R.F.A. No.66 of 2017 by her husband respondent No.6 herein, who is also one of the judgment debtors. That the respondent decree holders could not have proceeded to attach Item Nos.3 and 4 which belong to the appellant herein for the purpose of executing the decree in their favour. He also contended that the appellant in R.F.A. No.78 of 2017, who claimed to be the owner of Item No.5 of the schedule properties has been allotted the said property under a registered partition deed dated 01.09.2008 and a copy of which is appended to the application filed under Order XLI Rule 27 of C.P.C. which is for production of additional evidence. He submitted that this Court may consider the said applications, allow the same and permit the matter to be remanded so as to let-in evidence on the said documents and the applications filed by the appellants herein may be re-considered and disposed of in accordance with law. He submitted that this Court may consider the said applications, allow the same and permit the matter to be remanded so as to let-in evidence on the said documents and the applications filed by the appellants herein may be re-considered and disposed of in accordance with law. 7. Per contra, learned counsel for the respondent Nos.1 to 4 decree holders contended that the Executing Court rightly dismissed the applications filed by the appellants herein for want of any evidence to prove any right, title and interest in Item Nos.3 and 4 on the one hand and Item No.5 on the other hand. He contended that the appellants are procrastinating the matter on behalf of the judgment debtors and no reason has been assigned nor explanation offered as to why the appellants could not produce the documents of title when their applications filed under Order XXI Rule 97 of C.P.C. were being considered. He submitted that this Court may appreciate the fact that the appellants herein are engaging in delaying tactics, and therefore, the appeals being devoid of merit may be dismissed. 8. Having heard learned counsel for the respective parties, the following points would arise for our consideration : 1. Whether the Executing Court was justified in dismissing the applications filed by the appellants herein under Order XXI Rule 97 of C.P.C.? 2. What order? 9. It is not in dispute that the respondent decree holders succeeded in O.S. No.119 of 2009 later on renumbered as O.S. No.86 of 2012. It is also not in dispute that in R.S.A. No.1739 of 2013 has been filed before this Court against the judgment and decree passed in the said O.S. No.86 of 2012. The judgment debtors have initiated Execution Proceeding No. 76 of 2013 seeking recovery of a sum of Rs.17,87,995/-, the modes of execution sought for by the decree holders are by attachment and sale of schedule immovable properties. 10. It is the case of the appellants herein that Schedule Nos.3 and 4 belong to the appellant in R.F.A. No.66 of 2017 and Schedule No.5 belongs to the appellant in R.F.A. No.78 of 2017. 10. It is the case of the appellants herein that Schedule Nos.3 and 4 belong to the appellant in R.F.A. No.66 of 2017 and Schedule No.5 belongs to the appellant in R.F.A. No.78 of 2017. That there was threat of attachment of the said properties in the Execution Petition, the appellants herein filed their applications under Order XXI Rule 97 of C.P.C. Evidence was recorded on the said applications, but the appellants herein did not produce the original documents in the said proceeding. The appellant in R.F.A. No.66 of 2017 contended that her husband, who is one of the judgment debtors had gifted Item Nos.3 and 4 in her favour by registered gift deed dated 22.10.2008 even prior to the institution of the original suit by the decree holders/plaintiffs. That she has the right, title and ownership of the said suit items, she is also in possession of the said items. Therefore, the decree holders could not have sought attachment of Item Nos.3 and 4 of the schedule properties only because those properties belong to the wife of one of the judgment debtors. She, being the title holder of the said properties and no decree being passed as against her, the said properties could not have been included in the schedule to the Execution Petition nor could attachment of the said properties be sought. 11. Similarly, he submitted that insofar as the appellant in R.F.A. No.78 of 2017 is concerned, Item No.5 was allotted to him under a registered partition deed dated 01.09.2008. That the said document was no doubt not produced before the Executing Court, and therefore, an application has now been filed under Order XLI Rule 27 of C.P.C. by seeking to produce additional evidence. That the appellant in R.F.A. No.78 of 2017 is also not a judgment debtor, he is the son of one of the judgment debtors. The partition took place on 01.09.2008. The same is prior to the institution of suit. Therefore, Item No.5 belonging to the appellant in R.F.A. No.78 of 2017 ought not to have been attached, is the submission of the learned counsel for the appellant. 12. The partition took place on 01.09.2008. The same is prior to the institution of suit. Therefore, Item No.5 belonging to the appellant in R.F.A. No.78 of 2017 ought not to have been attached, is the submission of the learned counsel for the appellant. 12. We have considered the applications filed under Order XLI Rule 27 of C.P.C. Although we had directed the original documents to be produced, learned counsel for the appellant submits that the original gift deed is with the Bank as a security for a loan which has been obtained by the appellant in R.F.A. No.66 of 2017. Therefore, the certified copy has been produced along with the application. Learned counsel for the appellant in R.F.A. No.78 of 2017 has filed a Memo enclosing the original partition deed dated 01.09.2008, which is a registered document. In the circumstances, the further point that arises for consideration is, whether this Court ought to allow the said applications thereby giving an opportunity to the appellants in both these appeals to let-in evidence on the said documents in order to establish their case in the applications filed by them under Order XXI Rule 97 of C.P.C.? 13. The detailed narration of facts and contentions would not require reiteration. However, it is the contention of learned counsel for the appellants in both the cases that there were sufficient reasons acceptable in law as to why the documents could not have been produced before the Executing Court. It is submitted that insofar as the gift deed dated 22.10.2008 is concerned, the original document is with the Bank and it is on the basis of the said title deed that a loan has been obtained by the appellant herein, and therefore, the original document was not produced and that a certified copy has now been produced and an opportunity may be given to let-in evidence on the basis of the certified copy of the gift deed. As far as the appellant in R.F.A. No.78 of 2017 is concerned, the appellant's counsel contended that due to bona fide reasons, the same could not be produced as the appellant was under the impression that the Encumbrance Certificate which was produced was sufficient and adequate to prove his case. 14. As far as the appellant in R.F.A. No.78 of 2017 is concerned, the appellant's counsel contended that due to bona fide reasons, the same could not be produced as the appellant was under the impression that the Encumbrance Certificate which was produced was sufficient and adequate to prove his case. 14. It is necessary to emphasise at this stage that any application filed under Order XXI Rule 97 of C.P.C. by an objector is with an intention to establish his right, title and interest in respect of the immovable properties which is sought to be attached and subsequently sold in an Execution proceeding in order to execute a decree by the decree holder. The law provides an opportunity to a person whose property is sought to be attached and sold in execution of a decree, when such person is not a judgment debtor and he is a stranger to the legal proceedings and his right, title when interest in the immovable property has no nexus to the dispute between the decree holder and the judgment debtor in the Execution Proceeding seeking to execute a decree in favour of the decree holder. The said proceeding is akin to a suit where evidence is let-in and an opportunity is given to the objector to raise all contentions available in law and to prove his exclusive right, title and interest in the property, sought to be attached and sold and to establish the fact that the same cannot be done in law in the instant case. Therefore, the appellant herein filed the applications under Order XXI Rule 97 of C.P.C. However, they did not produce the title deeds to establish their exclusive right, title and interest in schedule Item Nos.3 and 4 on the one hand and schedule Item No.5 on the other hand which was sought to be attached and ultimately sold. It may be that the appellants herein are the wife and son of all the judgment debtors, who are respondent Nos.3 & 4, and 6 & 7 herein respectively. Merely because of their close relationship with the judgment debtors would not imply that their exclusive property could be sought to be attached and sold. It is in such circumstances that the law provides for an application to be filed by a title holder under Order XXI Rule 97 of C.P.C. to resist and obstruct any attachment of their properties. Merely because of their close relationship with the judgment debtors would not imply that their exclusive property could be sought to be attached and sold. It is in such circumstances that the law provides for an application to be filed by a title holder under Order XXI Rule 97 of C.P.C. to resist and obstruct any attachment of their properties. In the instant case, the Executing Court has dismissed the applications for the reason that the title deeds were not produced. Realising the said defect, the appellants herein have produced the documents along with an application filed under Order XLI Rule 27 of C.P.C. In order to give an opportunity to the appellants herein to establish the fact that they are the exclusive owners of Item Nos.3 and 4 on the one hand and Item No.5 of the schedule properties on the other hand, we think it just and proper to allow the applications filed under Order XLI Rule 27 of C.P.C. Consequently, we set aside the order of the Executing Court dated 14.12.2016 and remand the matter to the Executing Court so as to enable the appellants herein to let in the relevant evidence including the title documents in order to establish their right, title and interest in the aforesaid properties. The respondents herein are at liberty to cross-examine the appellants on the said documents to be produced. 15. In the result, the appeals are allowed. I.A. No.1 of 2017 filed under Order XLI Rule 21 of C.P.C. in both the appeals are also allowed. The order of the Executing Court dated 14.12.2016 is set aside and the matter is remanded to the Executing Court to reconsider the applications filed by the appellants herein under Order XXI Rule 97 of C.P.C. in accordance with law after giving an opportunity to the appellants herein to let-in the relevant evidence on their respective applications. 16. At this stage, learned counsel for respondent Nos.1 to 4 decree holders submits that procrastination of the matter by the appellants herein requires that the respondent decree holders be adequately compensated and costs be imposed against the appellants herein. 17. Learned counsel for the appellants submits that reasonable cost may be imposed. 18. It is noted at this stage that the Executing Court has dismissed the application with compensatory cost of Rs.2,000/-. 17. Learned counsel for the appellants submits that reasonable cost may be imposed. 18. It is noted at this stage that the Executing Court has dismissed the application with compensatory cost of Rs.2,000/-. In the circumstances, we deem it proper to impose cost of Rs.10,000/- on each appellant. The appellants shall pay the costs to respondent Nos.1 to 4 decree holders. The appellants shall pay the cost to respondent Nos.1 to 4 on the next date when the Execution Proceeding is posted before the Executing Court or on any other date to be stipulated by the Executing Court. 19. It is needless to observe that applications shall be disposed of within a period of six months from the next date of hearing before the Executing Court. Both parties shall extend their full co-operation to the Executing Court. 20. Office to return original partition deed dated 01.09.2008 to appellants' counsel forthwith for the purpose of producing the same before the Executing Court, subject to production of a copy of the same for the purpose of record.