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2020 DIGILAW 1996 (KAR)

Bargoor Allabakshi v. Akshtha

2020-10-05

H.B.PRABHAKARA SASTRY

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JUDGMENT H.B.Prabhakara Sastry, J. - The present petitioner was the plaintiff in O.S.No.89/2005, which he had filed against one Siddappa, S/o. Yamanappa, for the relief of specific performance of contract with respect to an immovable property. In spite of service of summons to him, he did not appear to contest the matter and as such, the said suit came to be decreed ex-parte against him. The plaintiff therein, who is the present petitioner, filed an execution petition in Execution Case No.86/2008 for the execution of the decree he was holding against the said Siddappa. The said Siddappa, the Judgment Debtor, appeared in the execution petition. During the pendency of the said Execution Petition, he passed away. The decree holder brought the legal representatives, that is the wife and two daughters of deceased Judgment Debtor Siddappa on record. It is only the wife of the deceased Siddappa as Judgment Debtor No.1 contested the execution petition by filing her statement of objections. However, she could not succeed in the execution petition and the Executing Court through the Court Commissioner got the sale deed executed in favour of the present petitioner on 14.09.2012. Subsequently the present respondents filed a petition under Order 9 Rule 13 of CPC praying the trial Court to set aside the judgment and decree passed in O.S.No.89/2005. The decree holder i.e., the present petitioner filed his statement of objections to the same and contested the matter. However, the trial Court by its impugned order dated 12.12.2012 allowed the said petition filed under Order 9 Rule 13 of CPC (though showing it to be an order allowing the petition filed under Order 9 Rule 9 CPC) and set aside the decree passed in O.S.No.89/2005 dated 05/03/2007 and restored the said suit on record. Both the parties were directed to appear before the Court on a particular date and to participate in further proceedings. It is against the said order dated 12.12.2012, the plaintiff in the original suit, who was the decree holder has filed the present petition. 2. The respondent is being represented by his counsel. 3. Heard both side. 4. With the consent from both side, the petition is taken up for its final disposal. 5. It is against the said order dated 12.12.2012, the plaintiff in the original suit, who was the decree holder has filed the present petition. 2. The respondent is being represented by his counsel. 3. Heard both side. 4. With the consent from both side, the petition is taken up for its final disposal. 5. Learned counsel for the revision petitioner in his arguments submitted that the very conduct of the opposite parties in the trial Court as well in the Executing Court shows that, even though they had the knowledge of the pendency of the original suit and subsequent execution petition, with some ulterior motive and only to defeat the very decree itself, they have adopted a methodology of non-appearance and of late have approached the Court through the petition under Order 9 Rule 13 of CPC. He further submits that, even in the Execution Petition also the present respondent No.1 had appeared through her counsel, but still chose to not to contest the matter and allowing the Executing Court to execute the sale deed through the Court Commissioner, has subsequently come up with the petition under Order 9 Rule 13 of CPC, as such, the very conduct of the parties does not deserve any order in their favour. However, the trial Court without noticing these aspects, only considering that the parties must be given a fair opportunity, has passed the impugned order, which does not deserve to be maintained. He further submits that the present respondents are the daughters of the Judgment Debtor No.1 and all the three of them are residing in the same house throughout including the date on which the impugned order came to be passed and as such, the contention that they were not aware of the execution proceedings is totally untrue. 6. Learned counsel for the respondents in his arguments submits that the present respondents were not aware of the pendency of the execution proceedings, as such, in a suit, particularly the one filed for the relief of specific performance of contract, the trial Court has rightly exercised its jurisdiction and as such, the same does not warrant any interference at the hands of this Court. 7. 7. In the light of the above arguments, the only point that arises for my consideration is: "Whether the impugned order passed by the trial Court is perverse and erroneous warranting interference at the hands of this Court?" 8. It is not in dispute that the plaintiff had instituted a suit against the father of the present respondents in O.S.No.89/2005 for the relief of specific performance with respect to suit schedule immovable properties. It is also an admitted fact that, even after his appearance through his counsel in the original suit, the father of the present respondents did not chose to file his written statement and contest the matter, which resulted in the trial Court to decree the suit in favour of the plaintiff as prayed. Further, it is also not in dispute that, since the Judgment Debtor, who was the father of the present respondents, did not execute the sale deed, the decree holder (plaintiff) was constrained to file the execution petition in E.P.No.86/2008. It is also not in dispute that, during the pendency of the said Execution Petition, the original Judgment Debtor Siddappa passed away and his legal representatives including the present respondents were brought on record by the decree holder. Further, it is also not in dispute that, among the three legal representatives, legal representative No.1 is the mother of the present respondents (Judgment Debtors No.2 and 3). It is also not in dispute that the said mother of the present respondents contested the Execution Petition, however, the Court proceeded to order for execution of the sale deed and ultimately it appointed a Court Commissioner, who executed an absolute sale deed in favour of the present petitioner (decree holder) on 14.09.2012. 9. In the light of the above undisputed facts, when the materials placed before the Court is analysed, it can be seen that the order sheet of the trial Court would clearly go to show that, among the present respondents, the respondent No.1 as Judgment Debtor No.2 in fact appeared in the Executing Court through her counsel before the Court Commissioner could execute the sale deed. She was given sufficient opportunity by the Executing Court to contest the matter, however, she did not. The said fact is clear in the certified copies of the order sheet of the Executing Court produced by the petitioner along with the memorandum of petition. 10. She was given sufficient opportunity by the Executing Court to contest the matter, however, she did not. The said fact is clear in the certified copies of the order sheet of the Executing Court produced by the petitioner along with the memorandum of petition. 10. Therefore, at the outset, it is clear that the contention of the present respondents that both of them were totally unaware of the execution case in the Executing Court is false and the present respondent No.1, who was the Judgment Debtor No.2 in the execution case, not only was aware of the execution proceedings, but also participated in it through her counsel. 11. In addition to the above, the addresses of all the three Judgment Debtors including the present respondents are the very same address as could be seen in the Execution Case and as such the submission of the learned counsel for the petitioners herein that the Judgment Debtor No.1 is the mother of Judgment Debtors No.2 and 3 and they were residing together in the same house as on the date of the execution case and passing of the present impugned order by the trial Court is not denied or disputed by the other side. Therefore, it appears that, even though the mother of the present respondents was living with the present respondents in the very same house, she alone chose to contest the execution case. However, one of her daughter Judgment Debtor No.2 at a later stage chose to appear through her counsel, but she did not contest the matter. Thus, being the residents in the same house and with the relationship of mother and daughters, the contention taken up by the present respondents that they were not aware of the execution case, which was accepted by the trial Court to pass the present impugned order, appears to be a bit strange. That too, particularly as observed above, when the record before the trial Court was clearly depicting that, among the present respondents, respondent no.1 in fact appeared in the Court through her counsel and participated in the proceedings on some hearing dates. However, the trial Court without considering all these aspects was just carried away by the fact that the relief sought for by the plaintiff is since one for specific performance of contract, which was the discretionary relief, all the Judgment Debtors are required to be given a fair opportunity. However, the trial Court without considering all these aspects was just carried away by the fact that the relief sought for by the plaintiff is since one for specific performance of contract, which was the discretionary relief, all the Judgment Debtors are required to be given a fair opportunity. 12. No doubt, the said reasoning that, before exercising the discretionary relief the Court is required to ensure that the other parties, who would be affected by any adverse order against them, were required to be given an opportunity of hearing, but as observed above, the proceedings sheet of the order sheet maintained by the Execution Court go to show that, the parties were given sufficient opportunity and moreover, the present respondent No.1 did in fact appear in the said proceedings through her counsel. Despite she appearing in the said proceedings through her counsel, she has made a false representation in her petition filed under Order 9 Rule 13 of CPC that she was totally unaware of the pendency of the Execution Case. The trial Court without ascertaining the true facts, believed the same and proceeded to pass the impugned order. 13. In my view, the very conduct of the respondents herein that they being continuously residing in the same house with the blood relationship of mother and daughters, coming before the trial Court in the execution proceedings one after another, however, leaving the Judgment Debtor No.3 and contesting that they were not aware of the proceedings is unbelievable in the circumstances of the case as could be made out from the existing records. 14. In such a situation, when a party has suppressed a fact before the Court and had obtained an order, which in the instant case respondent No.1 has done, and had made the trial Court to believe that she was not aware of the execution proceedings when in fact she did participate in it, I am of the view that they does not deserve any order of setting aside the decree passed in the original suit and a right for their participation in the proceedings which was ordered to be taken place afresh. 15. 15. The trial Court since has not considered all these aspects and as observed above, has only shown its interest in giving an opportunity to the respondents, but since it is now shown that the respondents do not deserve such discretionary power in their favour, the impugned order deserves to be set aside. Accordingly I proceed to pass the following order: ORDER The revision petition is allowed. The impugned order dated 12.12.2012 passed by the learned Senior Civil Judge, Gangavathi, in Civil Misc. Case No.1/2012 is set aside.