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2023 DIGILAW 1015 (KAR)

Honnappa v. K. V. Thimmappa

2023-08-24

V.SRISHANANDA

body2023
JUDGMENT 1. Heard Sri M. Shivaprakash, learned counsel for the appellants and Sri Chandran S. Rao, learned counsel for respondent No.1. 2. The present appeal is filed challenging the validity of the order passed by the learned XIV Additional City Civil Judge in execution No.929/2001 which is filed to execute the decree passed in O.S.No.1808/1984 dismissing the application filed under Order 21 Rule 97 of Code Civil Procedure dtd. 12/10/2007. 3. Parties are referred to as decree holder, judgment debtor and applicant as per their original ranking in the Trial Court. 4. Decree holder obtained the sale deed from Sri Siddalingappa who is the original judgment debtor on 12/5/1975 in respect of property which is a site bearing No.2, situated in Sanegoravanahalli Gramatana, Yaswantpura Hobli, Bengaluru, measuring East to West 44 feet, North to South 30 feet, demarcated by letters 'ABCD' in the suit sketch, bounded on East by Shivanna site, West by 30 feet road of CITB, North by site No.3 belonging to Hanumayya and South by site No.1 of Siddalingappa. 5. After purchase of the site, there were few litigations between the vendor of the decree holder and decree holder inasmuch as the vendor of the decree holder said to have executed a power of attorney and said power of attorney wanted the cancellation of the sale deed which was subject matter of O.S.No.1110/1982. Said suit after contest came to be dismissed for default on 11/2/1986. 6. In the meantime, since there was an interference by the vendor of the decree holder. As such, decree holder had filed a suit in O.S.No.1808/1984 which was contested by Siddalingappa and came to be decreed on 30/10/2000. The vendor of the decree holder filed an appeal in RFA 173/2001 on the file of this Court which on contest came to be dismissed on 4/7/2001. 7. Subsequently, the decree passed in O.S.No.1808/1984 was put into execution and sought for possession of the suit property by removing the encroachment thereon. Said execution petition was also been contested by the vendor of the decree holder and by virtue of the order dtd. 8/4/2002, the decree holder took possession of the property. 7. Subsequently, the decree passed in O.S.No.1808/1984 was put into execution and sought for possession of the suit property by removing the encroachment thereon. Said execution petition was also been contested by the vendor of the decree holder and by virtue of the order dtd. 8/4/2002, the decree holder took possession of the property. Later on, the applicant who is the appellant before this Court filed an application on 6/1/2003 seeking an order of protection claiming that he is having right over the suit schedule property which is subject matter of execution petition No.929/2001 by filing an application under Order 21 Rule 97 of Code of Civil Procedure. The applicant claims right over the said property by virtue of the sale deed executed by the wife and children of Siddalingappa through power of attorney holder Smt. Parvathamma. Siddalingappa said to have died on 31/3/1997 leaving behind Munirathnamma and Kumara as his legal heirs. The sale deed of the applicant is registered on 7/12/1997. The schedule mentioned in the sale deed executed by Munilakshmamma, Kumara and Parvathama, the property that has been sold is gramatana khatha No.19/287 and property bearing No.103 with a construction of two square A.C. sheet house measuring East to West 45 feet, North to South 30 feet, bounded on East by private property, West by road, North by remaining property of Siddalingappa and South by road. 8. The Trial Court entertained the application under Order 21 Rule 97 and decree holder filed his objection to the said application. Enquiry was held on the application thereafter. One Honnappa is examined as P.W.1 and K.V. Thimmappa is examined as R.W.1. Rough sketch of the suit property is marked as Ex.R.1. 9. The learned Trial Judge in the execution side, heard the parties and thereafter in detail has recorded a specific finding that the application filed by the applicant/appellant who is also termed as obstructer, has failed to make out any independent right in respect of the property which is the subject matter in O.S.No.1808/1984 and dismissed the application. 10. Being aggrieved by the same, the third party obstructer/appellant has filed the present appeal with the following grounds: * "The impugned Order dtd. 10. Being aggrieved by the same, the third party obstructer/appellant has filed the present appeal with the following grounds: * "The impugned Order dtd. 12/10/2007 passed on Application filed under Order 21 Rule 97 read with Sec. 151 of the Code of Civil Procedure in Ex.No. 929/2001 on the XIV Additional City Civil Judge at Bangalore under appeal is contrary to the law and the facts. The same cannot be sustained in law. * The Learned Trial Judge failed to consider and appreciate the sale in favour of the appellant / obstructer is Site No.1, the suit schedule property of the respondents / decree holders is Site No. 2. It is admitted fact that the sites formed in the revenue land on the Southern side of the respondents / decree holders, there is substantial encroachment, an attempt is made to compensate the encroached portion in the appellant / obstructer site to an extent of 5.8 feet x 44 feet, this has not been properly considered and appreciated by the Hon'ble Trial Court. * The Learned Trial Judge failed to consider and appreciate that the respondents / decree holders to make good of encroached portion on the Southern side to the Northern side in the property of the appellant / obstructer on the face of record calls for interference. ? The Learned Trial Judge ought to have believed and taken into consideration that what was sold under a sale deed dtd. 7/12/1987 is different, independent and distinct and it is not been properly considered, appreciated while considering the application under Order 21 Rule 97 of C.P.C., thus resulted in serious miscarriage of justice. * The Learned Trial Judge failed to consider and appreciate that what was sold under the sale deed measuring East to West 44 feet, North to South 30 feet is built with R.C.C. roofing dwelling house, there cannot be an encroachment other than 30 feet, the question decree obtained in O.S No. 1808 is not applicable to the case in hand thus calls for interference. * The Learned Trial Judge failed to consider and appreciate the judgment in O.S. No. 1808/1984 is not contested by the adversary, it is an exparte judgment, thus the reasoning subscribed by the Hon'ble Trial Court is not sustainable in law. * The Learned Trial Judge failed to consider and appreciate the judgment in O.S. No. 1808/1984 is not contested by the adversary, it is an exparte judgment, thus the reasoning subscribed by the Hon'ble Trial Court is not sustainable in law. * Viewed from any angle the Learned Execution Court by ignoring the declared ratio in AIR 1998 SC 1754 and ILR 1998 KAR 254, has passed an impugned order, thus calls for interference and setting aside the impugned order. 11. Reiterating the grounds urged in the appeal memorandum, Sri M. Shivaprakash, learned counsel for the appellant vehemently contended that the learned Trial Judge failed appreciate the scope of the application filed under order 21 Rule 97 and should have considered the independent rights established by the applicant in its proper perspective and ought to have recalled the order dtd. 8/4/2002 by allowing the application filed under Order 21 Rule 97 CPC and sought for allowing the appeal. 12. He also contended that the sale deed executed by Smt. Munilakshamma, Kumara, and parvathamma, being the legal heirs of Siddalingappa, conveyed the right, title and interest in respect of the suit property and therefore, the applicant possessed the independent right to seek restoration of property in the execution proceedings arising out of decree in O.S.No.1808/1984 and sought for allowing the appeal. 13. Per contra, Sri Chandan S Rao, learned counsel for decree holder by opposing the appeal has contended that the vendor of the decree holder Siddalingappa having sold the property which is the subject matter of O.S.No.1808/1984 as referred to supra in the year 1975 by registered sale deed dtd. 12/5/1975, somehow wanted to interfere with the property and therefore, he egged up his power of attorney holder, who inturn filed a suit seeking cancellation of the sale deed in O.S.No.1110/1982 which came to be dismissed for default on 11/2/1986. 14. He also contended that there was an interference of Siddalingappa in respect of the suit property. As such, the decree holder was constrained to file a suit for declaration and possession in O.S.No.1808/1984 which on constest came to be decreed on 30/10/2000 which was also confirmed in RFA No.173/2001 and thereafter he obtained the possession through the process known to law on 8/4/2002. As such, the decree holder was constrained to file a suit for declaration and possession in O.S.No.1808/1984 which on constest came to be decreed on 30/10/2000 which was also confirmed in RFA No.173/2001 and thereafter he obtained the possession through the process known to law on 8/4/2002. Therefore, per se the application filed on 6/1/2003 by the appellant was not at all maintainable which has been rightly appreciated by the learned Trial Judge in the impugned order and sought for dismissal of the appeal. 15. In view of the rival contentions, the sole point that would arise for consideration before this court is: 1) Whether the appellant has made out an independent right in respect of the property which is the subject matter of O.S.No.1808/1984 and therefore, he is entitled to restoration of property delivered to decree holder by executing decree passed in O.S.No.1808/1984? 2) What order? 16. In the case on hand, both the parties have adduced their oral evidence and produced rough sketch vide Ex.R.1. According to the appellant, he has purchased the property bearing gramatana khatha No.19/287, property No.103, situated at Saneguruvanahalli, Yashwanthpura Hobli, Bengaluru North Taluk from Munilakshamma, Kumara and Parvathamma, who are the wife and children of Siddalingappa who died on 31/3/1997. 17. The sale deed of the decree holder is dtd. 12/5/1975. After the full fledged trial, Siddalingappa lost all his rights in O.S.No.1808/1984 and which was confirmed in RFA No.173/2000. The decree passed in O.S.No.1808/1984 was duly executed and decree holder was put in execution No.929/2001 on 8/4/2002. 18. The appellant has claimed independent rights in respect of the property which is subject matter of the sale deed dtd. 7/12/1997. On perusal of the schedule, in the sale deed it appears that said property is different property than the property involved in O.S.No.1808/1984. Thus, the remedy for the appellant is elsewhere and not to object the decree passed in O.S.No.1808/1984 by seeking restoration of property involved in O.S.No.1808/1984. 19. The said aspect of the matter has been rightly appreciated by the learned Trial Judge while passing the impugned order. 20. Taking note of all these aspects of the matter and also taking note of the schedule mentioned in the sale deed executed on 7/12/1997 by the legal heirs of Siddalingappa and the schedule mentioned in the sale deed dtd. The said aspect of the matter has been rightly appreciated by the learned Trial Judge while passing the impugned order. 20. Taking note of all these aspects of the matter and also taking note of the schedule mentioned in the sale deed executed on 7/12/1997 by the legal heirs of Siddalingappa and the schedule mentioned in the sale deed dtd. 12/5/1975 wherein the suit schedule property which is subject matter of O.S.No.1808/1984 being sold in favour of the decree holder by Siddalingappa, this Court is of the considered opinion that the impugned order does not require any interference by this Court by exercising the power vested in this Court under Sec. 96 r/w Order 41 of Code of Civil Procedure. Accordingly, point No.1 is answered in the negative. 21. Regarding Point No.2: In view of findings on point No.1, following order is passed: ORDER Appeal is meritless and is hereby dismissed. However, the dismissal of the present appeal shall not affect the rights of the applicant/appellant, if any, as against the legal heirs of Siddalingappa in respect of the property shown in the sale deed dtd. 7/12/1997. In view of disposal of the main appeal, pending applications are consigned to records.