K.S. Gopal Krishna Shetty vs C.N. Udyashankar and Others

A.V. Chandrashekara, J.—Heard the learned Counsel appearing for the parties and perused the impugned order passed on 30th March 2013 in Execution No. 3/2005 which was pending on the file of Court of Senior Civil Judge, Chikmagalur.

Appellant is the decree holder, respondents-1 and 2 herein are the objectors and respondent Nos. 3 and 4 are the judgment debtors in the said execution petition.

Parties will be referred to as decree holder, objectors and judgment debtors.

Facts leading to filing of the present revision petition are as follows:

"Schedule property is a vacant site with a house property. The said property in question belonged to one lady by name Smt. Channamma and she was the absolute owner in possession of the schedule property. Objectors C.N. Udayashankar and C.N. Palaksha are the maternal grandsons of Channamma being the sons of her daughter Chandamma. The said Channamma died intestate leaving behind her one son Mallappa/judgment debtor No. 1 and one daughter Chandamma." 5. The decree holder K.S. Gopalakrishna Setty is stated to have purchased the entire property from Mallappa (the only son of Channamma) and his son Nandeesh/judgment debtor No. 2 through a registered sale deed for consideration on 3.6.1983.

Since Mallappa did not handover the vacant possession of the schedule property, said Gopalakrishna Setty chose to file a suit for possession in O.S. No. 358/1989 and the same was decreed. Being aggrieved by the said judgment and decree, Mallappa and Nandeesh chose to file an appeal in R.A. No. 13/1992 and the said appeal was also dismissed by confirming the judgment and decree passed in O.S. No. 358/1989. Afterwards, Mallappa and Nandeesh chose to file an appeal in R.S.A. No. 664/2000 before this Court and the said appeal was also dismissed granting nine months'' time to vacate and handover vacant possession of the property to the purchaser/Gopalakrishna Setty.

The decree holder Gopalakrishna Setty chose to file an execution petition in Execution No. 3/2005 against Mallappa and Nandeesh, to get possession of the property purchased by him from Mallappa. During the pendency of the said petition, objectors viz., C.N. Udayashankar and C.N. Palaksha claiming to be the sons of Chandamma, daughter of Channamma, objected the same by filing an application under Order XXI Rule 97 of CPC. The said application has been allowed as per the procedure contemplated under Order XXI Rule 98 of CPC on 30th March 2013. In the meantime, objectors have filed a suit in O.S. No. 267/2001 for partition and separate possession claiming half share of their mother against decree holder Gopalakrishna Setty and their uncle Mallappa and Nandeesh (son of Mallappa) and the said suit has been decreed, as against which a regular appeal has been filed by decree holder Gopalakrishna Setty in R.A. No. 61/2013 and the same is pending before the Court of Additional Civil Judge at Chikmagalur.

What is argued before this Court by the learned Counsel for the revision petitioner herein is that, when a suit is filed by the objectors, application filed under Order XXI Rule 97 CPC is not at all maintainable. Reliance has been placed upon a decision of this Court rendered in the case of A.M. Subbamma Vs. A.V. Kushalappa and Others, . What is held in the said decision is that, objection under Order XXI Rule 97 by objectors in an execution petition is not maintainable provided they have already filed a suit for partition and separate possession.

Per contra, learned Counsel for respondent Nos. 1 and 2/objectors has relied upon a decision of the Hon''ble Apex Court rendered in the case of Brahmdeo Chaudhary, Adv. Vs. Rishikesh Prasad Jaiswal and another, . Paragraph-9 of the said decision speaks about the application of Order XXI Rule 97 of CPC in an execution petition filed under Order XXI Rule 35 of CPC. Para-9 of the said judgment reads thus:

"9. In short the aforesaid statutory provisions of Order 21 lay down a complete code for resolving all disputes pertaining to execution of decree for possession obtained by a decree-holder and whose attempts at executing the said decree meet with rough weather. Once resistance is offered by a purported stranger to the decree and which comes to be noted by the executing court as well as by the decree-holder the remedy available to the decree-holder against such an obstructionist in only under Order 21, Rule 97 sub-rule (1) and he cannot bypass such obstruction and insist on reissuance of warrant for possession under Order 21, Rule 35 with the help of police force, as that course would amount to bypassing and circumventing the procedure laid down under Order 21, Rule 97 in connection with removal of obstruction of purported strangers to the decree. Once such an obstruction is on the record of the executing court it is difficult to appreciate how the executing court can tell such obstructionist that he must first lose possession and then only his remedy is to move an application under Order 21, Rule 99 CPC and pray for restoration of possession. The High Court by the impugned order and judgment has taken the view that the only remedy available to a stranger to the decree who claims any independent right, title or interest in the decretal property is to go by Order 21, Rule 99. This view of the High Court on the aforesaid statutory scheme is clearly unsustainable. It is easy to visualise that a stranger to the decree who claims an independent right, title and interest in the decretal property can offer his resistance before getting actually dispossessed. He can equally agitate his grievance and claim for adjudication of his independent right, title and interest in the decretal property even after losing possession as per Order 21, Rule 99. Order 21, Rule 97 deals with a stage which is prior to the actual execution of the decree for possession wherein the grievance of the obstructionist can be adjudicated upon before actual delivery of possession to the decree-holder. While Order 21, Rule 99 on the other hand deals with the subsequent stage in the execution proceedings where a stranger claiming any right, title and interest in the decretal property might have got actually dispossessed and claims restoration of possession on adjudication of his independent right, title and interest dehors the interest of the judgment-debtor. Both these types of enquiries in connection with the right, title and interest of a stranger to the decree are clearly contemplated by the aforesaid scheme of Order 21, and it is not as if that such a stranger to the decree can come in the picture only at the final stage after losing the possession and not before it if he is vigilant enough to raise his objection and obstruction before the warrant for possession gets actually executed against him. With respect the High Court has totally ignored the scheme of Order 21, Rule 97 in this connection by taking the view that only remedy of such stranger to the decree lies under Order 21, Rule 99 and he has no locus standi to get adjudication of his claim prior to the actual delivery of possession to the decree-holder in the execution proceedings. The view taken by the High Court in this connection also results in patent breach of principles of natural justice as the obstructionist, who alleges to have any independent right, title and interest in the decretal property and who is admittedly not a party to the decree even though making a grievance right in time before the warrant for execution is actually executed, would be told off the gates and his grievance would not be considered or heard on merits and he would be thrown off lock, stock and barrel by use of police force by the decree-holder. That would obviously result in irreparable injury to such obstructionist whose grievance would go overboard without being considered on merits and such obstructionist would be condemned totally unheard. Such an order of the executing court, therefore, would fail also on the ground of non- compliance with basic principles of natural justice. On the contrary the statutory scheme envisaged by Order 21, Rule 97 CPC as discussed earlier clearly guards against such a pitfall and provides a statutory remedy both to the decree- holder as well as to the obstructionist to have their respective say in the matter and to get proper adjudication before the executing court and it is that adjudication which subject to the hierarchy of appeals would remain binding between the parties to such proceedings and separate suit would be barred with a view to seeing that multiplicity of proceedings and parallel proceedings are avoided and the gamut laid down by Order 21, Rules 97 and 103 would remain a complete code and the sole remedy for the parties concerned to have their grievances once and for all finally resolved in execution proceedings themselves'': 10. As could be seen from the decision in Brahmdeo Chaudhary''s case, Order XXI is a complete code providing answer for all the grievances of the decree holder as well as the objectors.

Anyhow, the objectors have already filed a suit for partition and separate possession and also have obtained decree, which is challenged in R.A. No. 61/2013.

A plain reading of paragraph-9 of the decision in Brahmdeo Chaudhary''s case makes it clear that the approach adopted by the trial court in deposing of the very execution petition is not correct and proper. On the other hand, the execution petition filed by the decree holder Gopalakrishna Setty will have to be revived and kept pending till the regular appeal in R.A. No. 61/2013 is disposed of by the first appellate court. It need not be reiterated that the parties would be bound by a decision that would be rendered in R.A. No. 61/2013 and the hierarchy of the appellate courts. If for any reason the impugned order were to be upheld, it could cause inconvenience to the decree holder at a later point of time, providing opportunity to the objectors to contend that their relief is barred by time.

In the light of the suit filed by the objectors being decreed and pending by way of challenging in R.A. No. 61/2013, the proper remedy would be to revive the execution proceedings in Execution No. 3/2005 and keep it pending till the disposal of R.A. No. 61/2013 and the decision in the appeals of the higher courts.

Accordingly, this Revision Petition is allowed. The impugned order dated 30th March 2013 is set aside. The execution petition in Execution No. 3/2005 is revived and it shall be kept pending till the disposal of R.A. No. 61/2013 and the decisions that would be rendered by the courts in the hierarchy of appeals.

A direction is given to the first appellate court to dispose of the appeal as expeditiously as possible before 30th June 2015.

Registry to send a copy of this order to the first appellate court at the earliest for compliance.

Parties to bear their own costs.