Smt. B. R. Prema v. T. S. Ramamurthy

Judgment Debtors.

If the present Appellant/Objector is allowed to lead evidence before the Trial Court on the application filed U/Order 21 Rule 97, then it will take number of years and the fruits of the decree passed by the Hon'ble High Court of Karnataka in RSA will not come to the aid of the Decree Holder to enjoy the same. When it appears to the Court that the Appellant/Obstructer is abusing

the process of Court, then she cannot be permitted to lead evidence in support of the application.

¶24The Learned Counsel for the Appellant/Objector has relied upon the ratio laid down by the Hon'ble Apex Court of India which is reported in AIR 1998 SC 1754 in between Silver Line Forum Private Limited Vs. Rajiv Trust and another, AIR 1995 SC 358 in between

Bhanwarlal Vs. Satyanarayana and another, AIR 2002 SC 3083 in between Tanzeem-E-Sufia Vs. Bibi Haliman and others, AIR 1996 SC 2050 in between Babu Lal Vs. Rajkuamr and others, AIR 1997 SC 856 in between Brahmdeo Choudhary Vs. Rishikesh Prasad Jaiswal and another, AIR 2003 SC 3524 in between H.Seshadri Vs. K.R.Natarajan and another and AIR 1992 Calcutta 219 in between Dilip Nag Vs. Smt.Lilabati Garai.

¶25The Learned Counsel for the Appellant/Objector by relying upon the ratio laid down in the above said cases has vehemently argued before the Court that when the execution petition is resisted by the third party, the objections and rights of such third person has to be adjudicated by executing Court. This Court has carefully perused the ratio laid by the Hon'ble Apex Court of India and the Hon'ble High Court of Calcutta. When the present Appellant/Objector had already filed I.A.No.13 U/Order 1 Rule 10 of CPC in O.S.No.40/2006 to implead herself as party to the suit and when the said application came to be

rejected and the order passed by the Trial Court on I.A.No.13 in O.S.No.40/2006 was already upheld by the Hon'ble High Court of Karnataka in Writ petition, then this Court is of the opinion that the claim of the Appellant/Objector cannot be adjudicated. When the Appellant/Objector has already filed O.S.No.12/2009, then her remedy is before that Court and not before the executing Court. Hence this Court is of the opinion that the ratio relied upon by the Learned Counsel for the Appellant/Objector doesn't come to her aid.

¶26The Learned Counsel for the Decree Holder has relied upon the ratio laid down by the Hon'ble High Court of Karnataka which is reported in AIR 1987 Karnataka 75 in between Jesaraj Ghasimal Betal Vs. Ahammad Hussein, ILR 2014 Karnataka 4366 in between Mrs.Jacintha Swetha D'Souza and others Vs. Mrs.Lousia D'Souza and others, 2002 (2) KCCR 1196 in between Abudl Sattar and others Vs. Gurulingayya and others, the ratio laid down by the High Court of Rajasthan which is reported in AIR 1991 Rajasthan 136 in between Sri.Jai Prakash Vs. Khimraj and another.

¶27This Court has carefully perused the ratio laid down in the above said cases. By applying the ratio laid down in the above said cases, this Court is of the opinion that in order to file application U/Order 21 Rule 97, then the application has to be filed only by

the Decree Holder and the purchaser and not by the stranger. In the case on hand, the present Appellant/Objector has the knowledge about O.S.No.40/2006 and also obtaining the Judgment and Decree by her brother i.e., the Decree Holder and confirming the same by the Hon'ble High Court of Karnataka in the said RSA. But after exhausting all remedies, now she has filed the frivolous application before the Learned Trial Court and Learned Trial Court vide its considered order has rightly rejected the application filed by the Appellant.

¶28It is relevant to refer the ratio laid down by the Hon'ble High Court of Karnataka which is reported in ILR 2006 Kar 2696 = AIR 2006 Kar 271 in between A.M.Subbamma V/s A.V.Kushalappa and Others, wherein the Hon'ble High Court has held as under

CODE OF CIVIL PROCEDURE – ORDER 21 RULE 97 – Objector application filed – Ended in compromise – partition between parties – Objector filing a suit for partition and separate possession of her share in respect of the family properties – Whether objector can maintain an application under Order 21 Rule 97 – Relief sought in the suit and Order 21 Rule 97 application one and same – HELD – The Appellant having come to know that such a compromise decree, she has filed a separate suit which suit is pending decision.

The relief sought in the suit tiled by her and the contentions in the application filed under Order 21 Rule 97 of CPC are similar. When the relief in the suit as well as in the application are one and the same, Appellant cannot be permitted to pursue her remedy in two different proceedings. When she has availed the remedy of filing a suit, this court is of the opinion that on the same set of facts Appellant cannot maintain an application under Order 21 Rule 97 of CPC. Though the Appellant has filed an application under Order 21 Rule 97 of CPC, said application has to be tried as an 30 R.A.52/2016 independent suit. When she has already instituted a suit for the same relief, Petitioner cannot maintain an application under Order 21 Rule 97 of CPC subsequently. This court has carefully perused the ratio laid down in the above said case and applied the same to the facts on hand. In the case on hand also the present Appellant/Objector has already instituted O.S No.12/2009 for partition and separate possession in respect of family properties, wherein the present suit schedule property is one of the suit schedule property. The relief sought for by the Appellant in O.S No.12/2009 and in I.A No.5 in the Execution petition are one and the same. As per the ratio laid down by the Hon'ble High Court of Karnatka in the above said case, this court is of the opinion that

when the relief in the suit as well as in the application are one and the same, Appellant/Objector cannot be permitted to pursue her remedy in two different proceedings. When she has availed the remedy of filing a suit, this court is of the opinion that on the same set of facts Appellant/Objector cannot maintain an application under Order 21 Rule 97 of CPC. The ratio laid down by the Hon'ble High Court of Karnataka is aptly applicable to the facts on hand. By applying aforesaid ratio laid down by the Hon'ble High Court of Karnataka to the facts on hand, this court is of the opinion that the I.A No.5 filed by the Appellant/Objector is not maintainable and the learned Trial court has rightly rejected the said application. It appears to this court that the present Appellant/Objector at the instance of the Judgment Debtors is abusing the process of court as well as law by way of filing these types of frivolous application since the original suit was pending till the execution petition. Hence the exemplary cost has to be imposed on Appellant/Objector and accordingly exemplary cost of Rs.3,000/- is imposed on Appellant/Objector for abusing the process of court as well as law."

¶14Pertinently, First Appellate Court also noted that the very same applicant has filed a suit for general partition in respect of the properties left behind by Sri T.R.Srinivasasetty.

¶15Present Second Appeal came to be admitted by the co-ordinate Bench of this Court by Order dated 21.03.2019 on the following substantial questions of law. "(i) Whether Courts below were right in rejecting the application of the appellant under Order XXI Rule 97 CPC without holding an enquiry as contemplated Order XXI Rule 101 CPC?

(ii) Whether Courts below were right in holding that the rejection of the application of the appellant to implead her in O.S.No.40/2006 operates as res judicata in deciding her application under Order XXI Rule 97 CPC?"

¶16Sri Premnath, learned counsel for the appellant/objector reiterating the grounds urged in the appeal memorandum contended that, whenever an application under Order XXI Rule 97 and 101 r/w 151 of the Code of Civil Procedure is filed, it is the mandatory requirement to hold an enquiry and permit the parties to lead evidence so as to substantiate their claim.

¶17It is his submission that without conducting such an enquiry, if the application is decided on merits, it would per se amount to illegality besides procedural irregularity and thus

sought for allowing the appeal by answering the first substantial question of law in favour of the appellant.

¶18Sri Premnath, would also contend that rejection of the application of the appellant to implead her in O.S No.40/2006 operates as res judicata if the finding recorded by both the Courts is incorrect as the applicant has got a right under Order XXI Rule 97 of the Code of Civil procedure to object the decree.

¶19Therefore, mere rejection of the application filed by the appellant under Order I Rule 10 of the Code of Civil Procedure cannot be a ground to reject the application under Order XXI Rule 97 of the Code of Civil Procedure and thus sought for answering the second substantial question of law in favour of the appellant and sought for allowing the appeal.

¶20Per contra, Sri T.Srinivasan, learned counsel for the Decree Holder would support the impugned orders.

¶21He would further contend that the order that has been passed rejecting the application filed by the appellant under Order I Rule 10 of the Code of Civil Procedure would bind the

parties inter se in all subsequent proceedings. In such circumstances the principle of "constructive res judicata" would be applicable and there is no explanation whatsoever forthcoming as to why the appellant did not challenge the order dismissing her application filed under Order I Rule 10 of the Code of Civil Procedure.

¶22He would further contend that at least after the decree in O.S No.40/2006 is passed, the appellant should have taken steps to challenge the decree, as, a non-party can also file an appeal under Section 96 of the Code of Civil Procedure, if the party's rights are affected by the judgment and decree passed in a particular suit.

¶23No such attempt is made by the appellant and therefore, the appellant cannot now urge that she has got independent right to object the decree passed by duly constituted Court.

¶24Moreover, a separate suit filed by the appellant would be adjudicated on merits in respect of not only the property involved in the present appeal, but also in respect of other properties and appellant can always work out her remedy of

equitable partition, if some right has been affected in respect of the present suit property. Therefore, sought for dismissal of the appeal.

¶25He also points out that unless a party makes out an independent right to object for the decree, enquiry in respect of all such applications is not mandatory. Therefore the substantial questions of law will have to be answered against the appellant and sought for dismissal of the appeal.

¶26Having heard the arguments of both sides, this Court perused the material on record meticulously.

¶27On such perusal of the material on record, it is noted that appellant knew about pendency of the case in O.S No.40/2006 and she did made an attempt to file an application to implead herself as a party to the suit.

¶28Learned Trial Judge rejected the said application. For the reasons best known to the appellant, the matter was left there itself without challenging the Order rejecting the application filed under Order I Rule 10 Code of Civil Procedure.

¶29Therefore, appellant was aware of her right being curtailed and the order rejecting the application acted detrimental to her interest during pendency of the suit itself.

¶30As rightly contented by the counsel for respondent, even after the disposal of the suit in O.S No.40/2006. Appellant had the right to file an appeal though she was not a party to the suit, as her rights were affected, which she came to know at the time of filing the application for impleading itself.

¶31But, appellant for the reasons best known to her did not choose to challenge the judgment passed by the Trial Court.

¶32Not only appellant, but other defendants as well left the matter there itself and it is only the second defendant who contested the judgment of the Trial Court by filing R.A No.35/2012.

¶33Defendant No.2, having lost the case before the First Appellate Court, also filed a Second Appeal in RSA No.1187/2013, which also came to be dismissed by this Court.

¶34In other words, right of the plaintiff to obtain the possession of the suit property was thus, confirmed by this Court in RSA No.1187/2013.

¶35If at all the applicant is having interest in the suit property she should have challenged the judgment passed by the Trial Court or at least challenged the order rejecting the application seeking for impleadment.

¶36Having failed to do so, having known about her rights being curtailed and the orders that would be passed would be detrimental to the interest of the appellant, keeping quiet and sleeping over her rights all these years and filing an application under Order XXI Rule 97 and 101 Code of Civil Procedure that too in the execution petition of the year 2013 and pursuing the matter upto year 2026 without there being semblance of any independent right, is nothing but abuse of process of law.

¶37As such, first substantial question of law is answered against the appellant.

¶38In the absence of any independent right being made out by the appellant, the argument that is put forward on behalf of the appellant that there is a procedural error in not holding the enquiry and thus the Appeal needs to be allowed cannot be countenanced in law.

¶39It is needless to emphasize that an order suffered inter se by the parties would bind them in all subsequent proceedings and in the same proceedings as well, till it reaches finality.

¶40Therefore, the second substantial question of law will have to be necessarily answered against the appellant.

¶41In view of the foregoing discussion and answer of this Court to both the substantial questions of law in negative, following: ORDER

(i) Appeal is meritless and hereby dismissed.

Sd/- (V SRISHANANDA) JUDGE

kcm List No.: 1 Sl No.: 86

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL No.512 OF 2017 BETWEEN: SMT B. R. PREMA AGED ABOUT 77 YEARS, D/O LATE T.R. SRINIVASASETTY, (W/O. SRI. RATNAM) OCCUPATION BUSINESS IN HOME APPLIANCES AS M/S. PREMA ENTERPRISES, AT NO.460, BAZAAR ROAD, BANGARPET-563 114. …APPELLANT (BY SRI. PREMNATH T N, ADVOCATE) AND: 1. T. S. RAMAMURTHY SINCE DECEASED BY LRS (a) SMT.SHANTHA AGED ABOUT 65 YEARS W/O LATE T.S.RAMAMURTHY (b) SRI MOHAN KUMAR AGED ABOUT 48 YEARS S/O LATE T.S.RAMAMURTHY BOTH ARE R/AT NO.416, OLD NO.30 BAZAAR STREET BANGARPET – 563 114 by MALATESH K C Location: HIGH COURT OF KARNATAKA 2. SMT. LAKSHMIKANTHAMMA S/O LATE H.R. RAJANNA SETTY, AGED ABOUT 75 YEARS, R/AT ELE MALLAPA ROAD, BANGARPET-563 114. 3. H. R. RANGANATH S/O. LATE H.R. RAJANNA SETTY, AGED ABOUT 64 YEARS, R/AT NO.460, BAZAAR ROAD, BANGARPET-563 114. 4. H. R. MURALI S/O. LATE H.R. RAJANNA SETTY, AGED ABOUT 60 YEARS, R/AT NO.506, BAZAAR STREET, BANGARPET-563 116. 5. H. R. ASHOKA AGED ABOUT 52 YEARS, S/O. LATE H.R. RAJANNA SETTY, R/AT NO. 552/2, BAZAAR STREET, BANGARPET-563 114. 6. H. R. RAMALINGAMAT S/O. LATE H.R. RAJANNA SETTY, AGED ABOUT 49 YEARS, R/AT NO.533/C, VEERANNA COMPLEX, BAZAAR ROAD, BANGARPET-563 114. 7. H. R. RAGAVENDRA S/O. LATE H.R. RAJANNA SETTY, AGED ABOUT 39 YEARS, R/AT ELE MALLAPPA ROAD, BANGARPET-563 114. 8. H. R. MANJUNATH S/O LATE H.R. RAJANNA SETTY, AGED ABOUT 42 YEARS, R/AT ELE MALLAPPA ROAD, BANGARPET-563 114. 9. SMT. ANANDA LAKSHMI D/O. LATE H.R. RAJANNA SETTY, AGED ABOUT 58 YEARS, W/O. ASWATHA NARAYANA, PRESENT ADDRESS: JAGADISHWARA STORES, NO.88/603, GANDHI ROAD, KRISHNAGIRI, TAMILNADU. …RESPONDENTS [BY SRI. T SRINIVASAN, ADVOCATE FOR R1(B); SRI D.N.RAMACHANDRAPPA, ADVOCATE FOR R2 TO R9; VIDE ORDER DATED 17.11.2025, R1(B) IS TREATED AS LR'S OF DECEASED R1(A)] THIS RSA IS FILED UNDER SECTION 100 OF CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT & DECREE DATED 30.01.2017 PASSED IN R.A.NO.52/2016 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND J.M.F.C., KGF, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 05.03.2016 PASSED IN EX.NO.21/2013 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, BANGARPET REJECTING THE IA FILED UNDER ORDER 21 RULE 97 AND 101 AND R/W SECTION 151 OF CPC, PRAYING THIS COURT TO DIRECT TRIAL COURT HOLD THE RIGHT, TITLE INTEREST AND POSSESSION OF THE APPLICANT/OBJECTOR IN THE SCHEDULE PROPERTY. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri Premnath T.N. and Sri T.Srinivasan, learned counsel for the parties. 2. Parties are referred to as plaintiff and defendants as per their original ranking before the Trial Court, for the sake of convenience. 3. Present Second Appeal is by the objector in Execution Case No.21/2013 dismissing her application filed under Order XXI Rule 97 and 101 of the Code of Civil Procedure without holding an enquiry which was appealed before the First Appellate Court in R.A.No.52/2016 which also came to be dismissed by considered judgment dated 30.01.2017. 4. Facts which are utmost necessary for disposal of the present appeal are as under: 4.1 A suit in O.S No.40/2006 came to be filed by the respondent No.1/ decree holder in respect of the following property hereinafter referred to as 'suit property', against Smt.Lakshmikanthamma, H.R.Ranganath, H.R.Murali, H.R.Ashok, H.R.Ramalingam, H.R.Raghavendra, H.R.Manjunath and Anandalakshmi. "All that piece and parcel of shop premises measuring East West: 18 feet and North South 12 feet, in property No.460 (old No.300) bearing Municipal Khatha No.554/506/460, situate at Bazaar Road, Bangarapet-563 114, bounded on the: East by: remaining portion of the property belonging to plaintiff. West by: Bazar road, North by: V.R.Rajagopal Setty shop, South Passage in the same property leading to residential premises." 5. The suit on contest came to be decreed.