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2023 DIGILAW 177 (KAR)

Hanumanthrayappa v. Puttamma

2023-02-01

SACHIN SHANKAR MAGADUM

body2023
JUDGMENT/ORDER 1. The captioned second appeal is filed by the third party applicant feeling aggrieved by the concurrent orders of the Courts below, wherein both Courts have rejected third party application filed by the appellant herein under Order 21 Rule 99 of CPC and under Order 21 Rule 26 read with Rule 29 of CPC. 2. Respondent No.1 - Decree Holder brought in a suit for specific performance of contract in O.S.No.15/1998 based on the sale agreement dtd. 24/1/1997. It appears that suit ended in compromise. Based on the said compromise decree, respondent No.1 - Decree Holder filed an execution petition in Ex.P.No.55/2008. The present appellant herein, asserting that since there is an agreement of sale much prior to the suit agreement, filed an obstruction application under Order 21 Rule 99 of CPC. The Executing Court having examined the averments made in the affidavit filed in support of application had out rightly proceeded to reject the application on the ground that since third party applicant is not asserting an independent title, but claiming through Judgment Debtor, his application is not maintainable. 3. Feeling aggrieved by the order of the Executing Court, the present appellant herein preferred an appeal before the Appellate Court. The Appellate court having examined the scope of provisions under Order 21 Rule 99 of CPC., placing reliance on the judgment rendered by the Hon'ble Apex Court in the case of the N.S.S.NARAYANA SARMA AND OTHERS VS. M/S. GOLDSTONE EXPORTS (P) LIMITED AND OTHERS reported in AIR 2002 SC 251 was of the view that having regard to the facts and circumstances of the case, the present third party application would not warrant any detailed enquiry. Therefore, the Appellate Court was of the view that this is a fit case where an application is liable to be rejected summarily without relegating parties to lead evidence on the third party application. These concurrent orders are under challenge at the instance of the third party applicant. 4. Heard learned counsel appearing for the appellant and learned counsel appearing for the respondents. Perused the concurrent findings under challenge. 5. The learned counsel appearing for the appellant has fairly brought to the notice of this Court that the appellant herein based on an agreement dtd. 9/5/1995 has already instituted a suit for specific performance of contract. 4. Heard learned counsel appearing for the appellant and learned counsel appearing for the respondents. Perused the concurrent findings under challenge. 5. The learned counsel appearing for the appellant has fairly brought to the notice of this Court that the appellant herein based on an agreement dtd. 9/5/1995 has already instituted a suit for specific performance of contract. If these subsequent developments are taken cognizance of, then I am of the view that the captioned second appeal is liable to be dismissed on two counts. As rightly held by both Courts, the appellant herein is not asserting independent title, which would invite the attention of Executing Court and would have led to an independent enquiry by treating it as an independent suit. The appellant herein on the contrary is in fact pressing his possessory rights under an agreement executed by the original Judgment Debtor, who has suffered a decree in O.S.No.15/1998. 6. In catena of judgments rendered by this Court, this Court has held that third party applicant cannot maintain an application under Order 21 Rule 99 of CPC unless he asserts an independent title than that of Judgment Debtor. Therefore, this Court is of the view that third party application filed by the appellant herein was not maintainable. The facts of the case also indicates that the appellant herein is asserting right based on agreement for sale, which is dtd. 9/5/1995. Therefore, this Court is unable to understand as to how he can resist execution proceedings when his rights are yet to be adjudicated and determined under the agreement dtd. 9/5/1995. He is mere an agreement holder and does not possess better title than that of Judgment Debtor. Therefore the concurrent orders passed by the Courts in rejecting the application is in accordance with law. On account of subsequent developments, he has rightly brought to the notice of this Court that the captioned second appeal even otherwise does not survive for consideration as appellant herein based on agreement dtd. 9/5/1995 has already instituted a suit for specific performance of contract. In that view of the matter, no substantial question of law arises for consideration in this appeal. Accordingly, the appeal is dismissed. Any observations made by the Executing Court or the Appellate Court or this Court would not come in the way of the appellant in proving his case in the pending suit bearing O.S.No.821/2017. In that view of the matter, no substantial question of law arises for consideration in this appeal. Accordingly, the appeal is dismissed. Any observations made by the Executing Court or the Appellate Court or this Court would not come in the way of the appellant in proving his case in the pending suit bearing O.S.No.821/2017. In view of dismissal of the appeal, any pending interlocutory applications, if any, do not survive for consideration and accordingly, they are rejected.