- 1 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF MARCH, 2025 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE VENKATESH NAIK T REGULAR FIRST APPEAL NO.832 OF 2019 (RES) BETWEEN: SRI T.M. UMAPATHAIAH SECRETARY ST. JOHN'S BAPTIST EDUCATIONAL ASSOCIATION SHIVAKUMARASWAMY BADAVANE HADADI ROAD DAVANAGERE-577 005. …APPELLANT (BY SRI SANTOSH S. GOGI, ADVOCATE, FOR SRI SHARATH S. GOGI) AND: 1. K.B. RAMALINGAPPA S/O. BASAPPAIAH K. AGED ABOUT 71 YEARS RESIDING AT NO.1645/148 KASABA HOBLI, 2ND CROSS BEHIND ANJANEYA TEMPLE VIDYANAGARA DAVANAGERE-577 002. 2. G.E. UMESHA S/O. ESHWARA RAO AGED ABOUT 54 YEARS BUSINESS MAN RESIDING AT NO.3035 MCC 'B' BLOCK DAVANAGERE-577 002. Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: High Court of Karnataka - 2 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 SRI ANANDARAJ SINCE DECEASED, REPRESENTED BY HIS LEGAL REPRESENTATIVES: 3. ARTHAR TRILOKSING S/O. A.J. ANANDRAJ AGED ABOUT 60 YEARS BUSINESS MAN. 4. ANOOPSING S/O. ARTHAR TRILOKSING AGED ABOUT 30 YEARS BUSINESS MAN. 5. ARTHER JAISING S/O. A.J. ANANDRAJ AGED ABOUT 64 YEARS BUSINESS MAN. RESPONDENT NOS.3 TO 5 ARE RESIDING AT NO.3992/42 NEAR MES CONVENT, ANJANEYA BADAVANE DAVANAGERE-577 002. MOHANSING S/O. A.J. ANANDRAJ AGED ABOUT 62 YEARS SINCE DECEASED, REPRESENTED BY HIS LEGAL REPRESENTATIVES: 6. JHANCY W/O. MOHANSINGH AGED ABOUT 65 YEARS. 7. A.M. SMITHA D/O. MOHANSINGH AGED ABOUT 32 YEARS. 8. A.M. SUJITH SINGH S/O. MOHANSINGH AGED ABOUT 30 YEARS. RESPONDENT NOS.6 TO 8 ARE RESIDING AT NO.432 TMC RAGHAVENDRA COLONY AT PO TALUK TIPTUR, TUMKUR DISTRICT-572 101. - 3 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 9. PRASHANT S/O. ESHWARA RAO AGED ABOUT 50 YEARS BUSINESS MAN RESIDING AT PRASHANT CLOTH CENTER ASHOKA ROAD DAVANAGERE-572 101. REV LOUIS J. PETER S/O. JOHN MANUAL AGED ABOUT 64 YEARS SINCE DECEASED, REPRESENTED BY LEGAL REPRESENTATIVES: 10. MR. MOSIS S/O. REV LOUIS J. PETER PASTOR JOHN MEMORIAL BAPTIST CHURCH JALINAGAR DAVANAGERE-572 101. 11. RATHNAMALA W/O. TRILOKSING AGED ABOUT 54 YEARS EMPLOYEE AND HOUSE WIFE RESIDING AT NO.3392/42, NEAR MES CONVENT ANJANEYA BADAVANE DAVANGERE-577 002. …RESPONDENTS (BY SRI PRAKASH M. PATIL, ADVOCATE, FOR R-1, SRI HAREESH BHANDARY T., ADVOCATE, FOR R-4, & R-2, R-3, R-5 TO R-11 ARE SERVED AND UNREPRESENTED) * * * THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE C.P.C., PRAYING TO SET ASIDE THE ORDER DATED 13-3-2019 PASSED IN EXECUTION PETITION NO.298 OF 2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, DAVANGERE, AND ALLOW THE APPLICATION FILED UNDER ORDER XXI, RULE 97 READ WITH SECTION 151 OF THE C.P.C., AND RECALL THE ORDER DATED 28-3-2018 PASSED ON I.A. NO.1 UNDER ORDER XXI, RULE 41 OF THE C.P.C. THIS REGULAR FIRST APPEAL IS COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR and HON'BLE MR JUSTICE VENKATESH NAIK T ORAL JUDGMENT (PER: HON'BLE MR JUSTICE K.SOMASHEKAR) This appeal is filed by the objector challenging the order dated 13-3-2019 passed by the learned Principal Senior Civil Judge, Davanagere, in Execution Petition No.298 of 2017. 2. For the purpose of convenience, the parties are referred to as per their rankings before the trial Court in Original Suit No.134 of 2013. The appellant is defendant No.10/objector, respondent No.1 is the plaintiff/decree holder, and other respondents are the defendants/judgment debtors. 3. The brief facts of the case of the appellant/defendant No.10 are that respondent No.1/plaintiff/decree holder had filed a suit in Original Suit No.134 of 2013 before the trial Court against the appellant and other judgment debtors seeking recovery of money for - 5 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 a sum of Rs.52,00,000/- with interest at the rate of 18% per annum from the date of the suit till its realisation. The plaintiff contended that defendant No.1 is the Educational Institution and defendant Nos.2 to 9 are the members of the Managing Committee of defendant No.1. Among them, defendant Nos.3 to 5 were the President, Vice President, Secretary and the Treasurer, respectively and defendant Nos.6 to 9 were the members of the Institution in the year 2012. In order to run the Institution, defendant Nos.2 to 8/judgment debtors borrowed a loan of Rs.40,00,000/-. Later, they failed to repay the amount. Hence, the plaintiff filed the suit for recovery of amount. 4. The defendants appeared through their learned counsel and filed the written statement. After contesting the matter, the trial Court decreed the suit of the plaintiff and directed defendant Nos.2 to 8 to pay Rs.52,00,000/- with interest at the rate of 18% per annum from the date of the suit till its realisation. Hence, the plaintiff/decree - 6 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 holder filed Execution Petition No.298 of 2017 for recovery of amount before the Executing Court. In the said Execution Petition, the plaintiff/decree holder filed I.A. No.1 of 2018 under Order XXI, Rule 41 of the Code of Civil Procedure, 1908 (for short, 'CPC') seeking to attach the suit schedule property standing in the name of defendant No.1-Institution. The Executing Court, by its order dated 28-3-2018, attached item No.1 of the suit schedule property and directed the Sub-Registrar to create charge on the suit schedule property till execution of the Execution Petition. 5. The appellant/objector filed I.A. No.5 of 2018 in Execution Petition No.298 of 2017 under Order XXI, Rule 97 read with Section 151 of the CPC seeking to recall the order dated 28-3-2018 passed on I.A. No.1 of 2018. The Executing Court, after appreciating the pleadings, oral and documentary evidence on record, dismissed I.A. No.5 of 2018. - 7 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 6. Being aggrieved by the said order of attachment in I.A. No.1 of 2018 and rejection of I.A. No.5 of 2018, the objector has filed the present appeal. 7. The plaintiff/decree holder filed the statement of objections contending that I.A. No.5 of 2018 is not maintainable either in law or on facts. The relief sought by the objector to which he is not the owner of the property and he is not having source of title. In fact, the suit schedule property is gifted to judgment debtor Nos.1 and 3. Hence, he prayed to dismiss the application. 8. Judgment debtor Nos.1 and 3 filed objections to I.A. No.5 of 2018 contending that the application is not maintainable either in the eye of law or on facts. The objector is claiming the suit schedule property which is attached by the Executing Court under I.A. No.1 of 2018. The said schedule property was allotted by the Davangere-Harihar Urban Development Authority (for short, 'DUDA') in the name of the President and the Secretary by lease-cum-sale basis and katha was mutated - 8 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 in the name of Sri G. E. Umesh (judgment debtor No.1/President) and Sri Arther Jaisingh (judgment debtor No.3/Secretary). The plaintiff/decree holder- Sri K.B. Ramalingappa had issued the loan amount to the development of the Institution and the said amount is utilised for the improvement/development of existing building and also to run the Institution. The loan amount was not personally used by the members of the said Institution. As per Mahanagar Palike Assessment extracts, katha in respect of item No.1 of the suit schedule property stands in the name of judgment debtor Nos.1 and 3. Thus, the attachment and the charge created on the suit schedule property is justified one and no where the suit schedule property was transferred in the name of the objector/appellant. Hence, they prayed to dismiss the application. 9. Having considered the submission of both the parties and perusal of the material available on record, the following point arises for our consideration: - 9 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 Whether the appellant/objector/defendant No.10 has made out sufficient grounds to allow I.A. No.5 and to recall the order dated 28-3-2018 passed on I.A. No.1 of 2018 by the Executing Court? 10. In this case, the appellant/objector has taken the contention that the suit schedule property belongs to the DUDA. It was allotted by the DUDA in the name of the President and the Secretary of the Educational Institution, who are none other than judgment debtors No.1 and 3. 11. From perusal of the material on record, it appears that, in view of the order passed on I.A. No.1 of 2018, the Sub-Registrar, Davanagere, created charge on the suit schedule property. The Executing Court attached the property which was not owned by the DUDA. Hence, the appellant/objector/defendant No.10 filed application under Order XXI, Rule 97 of the CPC. Thus, it is just and necessary to analyse the said provisions which is as under: - 10 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 "If the provisions of Order 21 Rules 97 to 101 are read together it would be clear that it is only the obstruction or objection of persons who claim to be in actual possession of the immoveable property, which can be investigated in the Execution proceedings and not the claim of a person who offers to obstruct or object to the execution, though he is not in possession of the property. If it is to be held that even a person who claims some right in the property independent of the judgment-debtor and who is not a party to the proceedings can make an application offering objection or obstruction to the delivery of possession to the decree holder, even though he is not or does not claim to be in possession of the property, then there would be no end to the travails of a decree holder. The object of these Rules is to protect the interests of persons who are in possession of the immovable property having a right independent of the judgment-debtor against dispossession in execution of a decree, which is not binding on them, as well as to enable the decree holder securing possession of the property removing any obstruction that may - 11 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 be offered either by the judgment-debtor or by the persons claiming under him and who are bound by the decree. It must be remembered that these proceedings form part of the proceedings in execution of a decree for possession of immoveable property or for possession by a purchaser of an immoveable property sold in execution of a decree. Persons who are not in actual possession of immovable property are not given a right to agitate their rights in proceedings in execution of a decree or possession under the guise of an application offering obstruction or objection to the execution. It is abundantly clear that it is only a person who is in actual possession of the immovable property in respect of which either a decree for possession or objection by filing an application. If a person making such an application is found to be not in actual possession of the property then he or she cannot maintain the application and the Executing Court would be free to proceed with the execution, ILR 1995 Kar 1892. - 12 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 Order 21, Rule 97(1) and (2), 101, 98, 99, 100, 103 (as they stood prior to, and after, 1976 Amendment), 35 and 36: Apex Court has held in Shreenath Vs. Rajesh, (1998) 4 SCC 543; AIR 1998 SC 1827 that "Under Order 21, Rule 35(1), the executing court delivers actual physical possession of the disputed property to the decree-holder and, if necessary, by removing any person bound by the decree who refuses to vacate the said property. Under Rule 36, the decree- holder gets the symbolic possession. Order 21, Rule 97 conceives of resistance or obstruction to the possession of immovable property when made in execution of a decree by "any person." This may be either by the person bound by the decree, claiming title through the judgment-debtor or claiming independent right of his own including a tenant not party to the suit or even a stranger. A decree-holder, in such a case, may make an application to the executing court complaining such resistance for delivery of possession of the property, Rule 97(2) after 1976 substitution empowers the executing courts when such claim is made to proceed to - 13 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 adjudicate upon the applicant's claim in accordance with the provisions contained thereinafter. This refers to Order 21, Rule 101 (as amended by 1976 Act) under which all questions relating to right, title or interest in the property arising between the parties under Order 21, Rule 97 or Rule 99 should be determined by the court and not by a separate suit. The Apex Court has explained the scope of adjudication of right, title and interest in property before execution under Order XXI, Rules 98, 100, 101, 103 and 104 in Nooruddin V K L Anand, (1995) 1 SCC 242. "The scheme of the Code clearly adumbrates that when an application has been made under Order XXI, Rule 97, the court is enjoined to adjudicate upon the right, title and interest claimed in the property arising between the parties to a proceeding or between the decree-holder and the person claiming independent right, title or interest in the immovable property and order in that behalf be made. The determination shall be conclusive between the parties as if it was a - 14 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 decree subject to right of appeal and not a matter to be agitated by a separate suit. In other words, no other proceedings were allowed to be taken. The scheme of the Code appears to be to put an end to the protraction of the execution and to shorten the litigation between the parties or persons claiming right, title and interest in the immovable property in execution". 12. We have gone through the pleadings, evidence and documents relied on by the parties. The main contention of the objector is that the suit schedule property was leased out by the DUDA in the name of the President and the Secretary of St. John's Educational Institution and it was attached by the Executing Court under I.A. No.1 of 2018. Admittedly, the objector was a party to the proceedings in Original Suit No.134 of 2013. He contested the matter on behalf of other defendants and also examined on oath as DW1. In the evidence, the objector admitted certain aspects of the matter viz., he has been working as Secretary of the Institution since - 15 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 2013. From perusal of the material available on record, it clears that one V. Manjunath gifted the suit schedule property to St. John's Educational Institution. The objector further admitted that earlier President and Secretary of the Institution had borrowed loan from the plaintiff and later, the Institution borrowed loan from Bank and thus, matter was pending before the Debts Recovery Tribunal and later, the former President and Secretary of the Institution cleared the Bank loan. The objector has specifically admitted that the suit schedule property stands in the name of former President and Secretary. In view of existence of new Management Committee, the Committee has not transferred katha in respect of suit schedule property to its name. The objector was having complete knowledge about the Debts Recovery Tribunal proceedings and he appeared before the Debts Recovery Tribunal. Admittedly, gift deed was executed by one V. Manjunath in favour of the Institution. Therefore, the DUDA cannot cancel the order passed by the Deputy - 16 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 Commissioner and the DUDA cannot grant leasehold rights in favour of the objector. 13. The objector admitted that he had knowledge about the outstanding loan of the Institution and the same was cleared by new President and Secretary of the Institution. It shows that in the year 2016, St. John's Educational Institution repaid the loan to the Bank and secured the documents. Thus, the subject matter of gift deed and the suit schedule property are one and the same. The gift deed stands in the name of the President and the Secretary of the Institution which clearly establishes that the suit schedule property stands in the name of one V. Manjunath and later, he gifted the same in favour of the President and the Secretary. The Management Committee availed loan from the Bank as well as from private persons to run the Institution. Later, the Institution was unable to repay the Bank loan and other private loan. Thus, the Bank and private persons initiated proceedings against the Institution and - 17 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 Management Committee. Thus, all these factual aspects are within the knowledge of the objector. The new Management Committee has cleared the Bank loan and received original documents pertaining to the suit schedule property. These aspects clearly demonstrate that the Institution cleared the Bank loan as per the order passed by the Deputy Commissioner. Therefore, the objector was a party to the earlier proceedings. However, he never took such contention in the suit. Once he was a party to the proceedings, he is under the obligation and bound by the decree. The objector, in order to substantiate his contention that the DUDA granted leasehold rights in his favour, has not placed any material before the Executing Court or before this Court. Thus, it infers that, one V. Manjunath being absolute owner and in possession of the suit schedule property gifted the same to the Institution. Under such circumstances, it is not possible for the DUDA to lease out the suit schedule property in favour of the objector without having any right. Hence, I.A. No.5 of 2018 filed by the objector was - 18 - NC: 2025:KHC:9083-DB RFA No. 832 of 2019 not maintainable before the Executing Court. If the objector is aggrieved by the judgment and decree, he could have preferred an appeal. However, in this case, it appears that, the objector never preferred appeal aggrieved by the judgment and decree passed in Original Suit No.134 of 2013. Thus, the objector has not made out any grounds to recall the order dated 28-3-2018 passed on I.A. No.1 of 2018. 14. For the reasons stated above, the appeal stands dismissed. The order dated 13-3-2019 passed by the learned Principal Senior Civil Judge, Davanagere, in Execution Petition No.298 of 2017, is hereby confirmed. In view of the dismissal of the appeal, pending applications, if any, shall stand dismissed. Sd/- (K.SOMASHEKAR) JUDGE Sd/- (VENKATESH NAIK T) JUDGE KVK