- 1 - HC-KAR NC: 2025:KHC:47283 RSA No. 1562 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1562 OF 2024 (INJ) BETWEEN: 1. SMT. GIRIJA ACHARTHI W/O LATE RAMANNA ACHARY SINCE DEAD BY HER LRS. SMT. NETHARAVATHI ACHARTHI D/O LATE RAMANNA ACHARY AGED ABOUT 65 YEARS 2. SRI. HARISHCHANDRA ACHARYA S/O LATE RAMANNA ACHARY AGED ABOUT 63 YEARS 3. SRI. SUNDARA ACHARYA S/O LATE RAMANNA ACHARY AGED ABOUT 61 YEARS 4. SMT. SUSHEELA ACHARTHI D/O LATE RAMANNA ACHARY AGED ABOUT 58 YEARS 5. SMT. SUMATHI ACHARTHI D/O LATE RAMANNA ACHARY AGED ABOUT 58 YEARS 6. SRI. VASANTHA ACHARYA D/O LATE RAMANNA ACHARY AGED ABOUT 54 YEARS 7. SMT. REVATHI ACHARTHI Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:47283 RSA No. 1562 of 2024 D/O LATE RAMANNA ACHARY AGED ABOUT 54 YEARS, 8. SRI. JAYANANDA D/O LATE RAMANNA ACHARY AGED ABOUT 49 YEARS, ALL ARE RESIDING AT PADUMANE INNA VILLAGE, KARKALA TALUK UDUPI DISTRICT-576 121. …APPELLANTS (BY SRI. PRASANNA V.R., ADVOCATE) AND: 1. MRS. RAMA LAXMAN ACHARYA W/O LATE LAXMAN ACHARYA, AGED ABOUT 81 YEARS, 2. MRS. ASHA PRAVEEN D/O LATE LAXMAN ACHARYA AGED BOUT 57 YEARS, 3. MRS. USHA MOHAN D/O LATE LAXMAN ACHARYA AGED BOUT 56 YEARS, 4. MR. RAMESH ACHARYA S/O LATE LAXMAN ACHARYA AGED BOUT 54 YEARS, 5. MR. SRINIVAS ACHARYA S/O LATE LAXMAN ACHARYA AGED BOUT 50 YEARS, RESPONDENTS NO.1 TO 5 ARE ALL R/AT KODI HOUSE, INNA VILLAGE SANTHOOR KOPLA POST KARKALA TALUK UDUPI DISTRICT - 576 121. - 3 - HC-KAR NC: 2025:KHC:47283 RSA No. 1562 of 2024 6. MRS. RAJEEVI ACHARTHI W/O LATE KRISHNAYYA ACHARYA AGED ABOUT 73 YEARS R/AT KODI HOUSE, INNA VILLAGE SANTHOOR KOPLA POST KARKALA TALUK UDUPI DISTRICT-576 121. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 25.06.2024 PASSED IN R.A.NO.27/2017 ON THE FILE OF SENIOR CIVIL JUDGE AND ACJM, KARKALA, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 22.04.2017 PASSED ON IA NO.VII IN EX NO.15/2007 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, KARKALA. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission and I have heard learned counsel for the appellants. 2. This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court. 3. The factual matrix of the case of the claim petitioner is that an application is filed under Order XXI Rules 99 and 101 read with Section 151 of CPC praying the Court to recall the delivery warrant issued in the case and to adjudicate - 4 - HC-KAR NC: 2025:KHC:47283 RSA No. 1562 of 2024 and decide the claim of the petitioner. In support of this application, it is contented that petitioner is the sharer in the properties in respect of which partition deed was entered into on 04.01.2000 between Ramanna Achary and his brothers. The petitioner is the wife of Ramanna Achary. After the death of Ramanna Achary, she along with her children succeeded to the said properties in respect of which delivery warrant is issued herein including other properties. It is also contented that O.S.No.73/2006 and O.S.No.199/1985 were filed by suppressing the true facts and the petitioner and her children were not parties to the said suits. It is further pleaded that the petitioner came to know about the above said suits only when the Bailiff of the Court came to execute the delivery warrant. Hence, filed the present application. 4. The decree holders' opponents have filed objections contending that the very application is not maintainable. The application is an attempt of abuse of process of law and the same is liable to be dismissed. Decree holders have also denied obtaining of decree in earlier suits by suppressing true facts. It is contented that the execution is not against the property of - 5 - HC-KAR NC: 2025:KHC:47283 RSA No. 1562 of 2024 the petitioner. The execution is an injunctive decree against the judgment debtors and the petitioner is acting at the behest of the judgment debtors with malafide intention. 5. The Trial Court considering the grounds urged in the application as well as the objection statement, formulated the points whether the claim petitioner establishes that she is the third party to the decree passed in O.S.No.73/2006 and whether the claim of the petitioner requires fresh adjudication. Having considered the evidence of both the parties, particularly the admission on the part of the petitioner, in detail discussed in paragraph Nos.11 to 15 and comes to the conclusion that the children of this petitioner are also party to O.S.No.73/2006. Hence, the very contention that suppressing the material facts obtained the decree was not accepted and also taken note of the effort made by the petitioner at the behest of her children and filing of the present application, that too when the delivery warrant was issued and the judgment and decree was not challenged, since the children are also co-owners, in respect of the very judgment and decree passed in O.S.No.73/2006. Hence, dismissed the application. - 6 - HC-KAR NC: 2025:KHC:47283 RSA No. 1562 of 2024 6. Being aggrieved by the said judgment and decree, an appeal is filed in R.A.No.27/2007. The First Appellate Court also having considered the grounds which have been urged in the appeal, formulated the points whether the order passed by the Trial Court is contrary to the facts of the case and evidence on record and whether it requires interference. The First Appellate Court also having reassessed both oral and documentary evidence, particularly taking note of the contention of the appellant, in paragraph No.17 taken note that her main contention is that she is in exclusive possession and enjoyment of the suit property and that she was not aware of the suits filed in O.S.No.73/2006 and O.S.No.199/1985 passed by this Court and the same is not binding upon her or her children. But the Trial Court taken note of the earlier suit in O.S.No.87/2007 which is marked as Ex.D1 copy of the judgment and also observed that a perusal of the judgment and decree passed by the Trial Court in O.S.No.87/2007 goes to show that both the suit of the plaintiff and the counter claim of the defendants are dismissed. Therefore, it can be concluded that though the claim petitioner submits that she has been declared as owner of the said property, the said suit has been - 7 - HC-KAR NC: 2025:KHC:47283 RSA No. 1562 of 2024 dismissed and the claim of the plaintiff/present claim petitioner seeking permanent injunction against the defendants/decree holders was rejected. Even a perusal of schedule of the suit in O.S.No.73/2006 clearly goes to show that the properties included in O.S.No.73/2006 in ‘B’ schedule i.e. Sy.No.61/23B6, Sy.No.61/23B5 and Sy.No.61/14D are not included in O.S.No.87/2007 and taken note of the schedule which have been mentioned in the earlier suit and also the present suit. Apart from that admission of the claim petitioner itself shows that she had the knowledge of the case pending in O.S.No.73/2006 and even no evidence is adduced by the claim petitioner or the judgment debtor in the original suit at least to show that the properties belong to them or to the claim petitioner. 7. Having considered all these materials, in detail discussed in paragraph Nos.18 to 21 considering the contents of the application and also the reasoning given by the Trial Court comes to the conclusion that entire evidence of D.W.1 has been falsified by way of cross-examination and admissions made by the claim petitioner and the claim petitioner being the - 8 - HC-KAR NC: 2025:KHC:47283 RSA No. 1562 of 2024 mother of the judgment debtor Nos.2 and 3 was having very much knowledge about pendency of O.S.No.73/2006 and no ground has been made out to recall the delivery warrant issued against them and confirmed the same. Being aggrieved by the concurrent finding, present second appeal is filed before this Court. 8. The main contention of learned counsel appearing for the appellant before this Court is that Executing Court has committed an error in dismissing the application filed by the predecessor of the appellant/third party obstructer having accepted the fact that decree passed in O.S.No.199/1985 and sketch drawn as per Ex.D14 demarcating the property therein are not binding on the plaintiff as held in O.S.No.87/2007 filed by the third party obstructer against the decree holders, whose counter claim is also being rejected. The counsel also would contend that the First Appellate Court failed to consider the material on record and not justified in rejecting I.A.No.4 filed under Order 41 Rule 27 read with Section 151 of CPC in R.A.No.27/2017, so as to examine the Court Commissioner, though the Executing Court has observed that as the Court - 9 - HC-KAR NC: 2025:KHC:47283 RSA No. 1562 of 2024 Commissioner was not examined by the claim petitioner, his report and sketch will not come to her aid and the very approach of even the First Appellate Court is erroneous and the Trial Court also committed an error. 9. Having heard learned counsel for the appellant and also the material available on record, particularly the claim made by the appellant before the Trial Court based on the judgment and decree passed in O.S.No.87/2007 which is dismissed, the counter claim of the defendants is also dismissed. The very contention of the defendant in the suit in O.S.No.73/2006 is that appellant is not the party to the proceedings. But the fact is that her children i.e., judgment debtor Nos.1 and 2 are the parties and they were having the knowledge about the claim made by the plaintiff in O.S.No.73/2006 and also the fact that they are the co-owners in respect of the property and the said factor was also taken note of and even inspite of they having the knowledge about the suit filed in O.S.No.73/200, even the children also did not contest the matter and the present appellant also not made any effort to file any application in the said suit and when the - 10 - HC-KAR NC: 2025:KHC:47283 RSA No. 1562 of 2024 judgment and decree passed in O.S.No.73/2006 came to be decreed by considering the factual aspects and the same remained unchallenged and when the delivery warrant was issued, the present application is filed and the same was also taken note of by the Trial Court in paragraph No.13 while discussing the same. Hence, the present application is nothing but an instigation made by the judgment debtor Nos.1 and 2, who are none other than the children of the present petitioner and the First Appellate Court also taken note of the oral and documentary evidence available on record and in detail discussed in paragraph No.19 and 20 and even the contention of the petitioner was also discussed in paragraph No.17 and taken note of document i.e., Ex.D1 decree passed in O.S.No.87/2007 and in detail discussed that the decree in respect of O.S.No.73/2006 is not the subject matter of the suit in O.S.No.87/2007, wherein also the suit was dismissed and counter claim was also dismissed. The First Appellate Court also discussed in paragraph No.19 that the admission of the claim petitioner itself goes to show that she had the knowledge about the case pending in O.S.No.73/2006 and the judgment debtors, who are none other than the children of the present - 11 - HC-KAR NC: 2025:KHC:47283 RSA No. 1562 of 2024 appellant in the original suit, at least to show that the properties belong to them or to the claim petitioner, no evidence is adduced before the Court and they kept quiet and when the entire evidence of D.W.1 has been falsified by way of cross-examination and admission made by the claim petitioner and the claim petitioner being the mother of judgment debtors made an attempt to defeat the very fruits of the decree passed in O.S.No.73/2006. When such material is considered by the Trial Court and both the Courts have taken note of the fact that when in the execution petition delivery warrant was issued, at that juncture, an application is filed having the knowledge about the decree passed in O.S.No.73/2006, wherein her children are also the parties, now cannot contend that she was not added as party in the original suit, since her children are also parties and they are also the co-owners as contended by the appellant. When such being the case, I do not find any ground to admit the second appeal and frame any substantial question of law and the same is considered by both the Courts, particularly taking the admission of the witness, who has been examined before the Trial Court. Hence, not a case to invoke Section 100 of CPC. - 12 - HC-KAR NC: 2025:KHC:47283 RSA No. 1562 of 2024 10. In view of the discussion made above, I pass the following: ORDER The regular second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 39