- 1 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO. 930 OF 2018 (RES) BETWEEN: 1. SRI. JAYARAMAIAH S/O. PUTTAIAH, AGED ABOUT 60 YEARS R/AT. YELACHAGUPPE, TAVAREKERE HOBLI, BENGALURU SOUTH TALUK, BANGALORE – 562 130. …APPELLANT (BY SRI. SUNIL S RAO, ADVOCATE FOR SRI. T SESHAGIRI RAO, ADVOCATE) AND: 1. SRI.V. RAJENDRA S/O VENKATACHALAPATHY AGED ABOUT 65 YEARS R/AT. NO.16, APPAIAHANA LANE, DODDAMAVALLI BENGALURU – 560 004. 2. SRI. H.P. RAMAIAH S/O. PUTTAIAH, AGED ABOUT 65 YEARS R/AT. YELICHIKUPPE VILLAGE, TAVAREKERE HOBLI, MAGADI TALUK, PRESENTLY BENGALURU SOUTH TALUK, Digitally signed by THEJAS KUMAR N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 BENGALURU DISTRICT – 562 130. …RESPONDENTS (BY SRI. PREMNATH T N, ADVOCATE FOR R1; NOTICE TO R2-DISPENSED WITH V/O DATED 18-03-2025) THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W.SEC.96 OF CPC., AGAINST THE ORDER DATED 08.02.2018 PASSED IN EX.NO.1129/1992 ON THE FILE OF THE VII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU AND ETC., THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR ORAL JUDGMENT The Regular Second Appeal is filed by the appellant / 3rd party objector challenging the order passed on an application filed under Order XXI Rule 99 CPC with a prayer that the appellant/3rd party objector may be declared to be in possession of the schedue property on his own account being not bound by the decree and to dismiss the execution petition insofar as the delivery of possession of schedule property is concerned in Ex.Case No.1129/1992 (in O.S.No.1298/1984) dated 08.02.2018 by the Court of VII Additional City Civil & Sessions Judge - 3 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 (CCH No.19), Bengaluru, whereby the said application came to be dismissed. 2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Executing Court. 3. Respondent No.1/decree holder is successful in obtaining decree suit for specific performance of contract against respondent No.2/judgment debtor in O.S. No.1298/1984. When the decree holder filed an execution case for executing the sale deed through the Court Commissioner and also for delivery of possession of the suit schedule properties, at that moment, the appellant/3rd party objector filed an application under Order XXI Rule 99 of CPC. Therefore, the prayer is that he be declared as owner and is in possession over the property and declare that the decree passed in OS No.129/1984 is not binding on him and dismisse the application filed in execution petition. - 4 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 4. It is the case of the appellant/3rd party objector that the decree holder filed a suit in O.S. No.1298/1984 for specific performance of agreement dated 11.07.1983 stated to have been executed by respondent No.2/judgment debtor in the suit. The decree holder obtained decree in the above suit for specific performance of agreement and to put him in possession of the schedule property, failing which, the decree holder is entitled to get possession of the schedule property by executing the decree. It is stated that the appellant/ 3rd party objector learnt that the decree is passed to the effect that if respondent No.2/judgment debtor fails to evict the unauthorized occupation, the respondent No.1/decree holder is at liberty to do so in accordance with law. The decree holder has obtained the decree on the assertion that the schedule property is absolute property of the second respondent/judgment debtor. 5. Further, it is the case of the appellant/3rd party objector that respondent No.2/judgment debtor had no - 5 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 individual subsisting absolute right over the suit schedule property. Respondent No.2 and other members in the joint family have continued to prove that the schedule property is one of the joint and ancestral properties among others. The appellant/3rd party objector came to know that respondent No.2/judgment debtor in order to create documents in his personal name, has created agreement in favour of the respondent No.1/decree holder. 6. The appellant/3rd party objector filed a suit in OS No.261/1992 for partition and also sought for relief of declaration that the judgment and decree passed in O.S. No.1298/1984 is not binding on him. The respondent No.1/decree holder is party to the suit in O.S.No.261/1992 as defendant No.5. After contest, the said suit is decreed and held that the judgment and decree passed in O.S.No.1298/1984 is not binding on the share of the appellant/3rd party objector (plaintiff in the suit in OS No.261/1992). - 6 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 7. After the decree, the appellant/3rdparty objector has filed Final Decree Proceeding in F.D.P.No.4/1999 and the schedule property has been allotted to the appellant/3rd party objector’s share and now he is in possession over the suit schedule property in pursuant of the valid decree obtained against the respondents. Therefore, by contending that the appellant/3rd party objector is in possession of the suit schedule property being an owner as he was allotted a share and therefore, the judgment and decree passed in O.S. No.1298/1984 cannot be executed as respondent No.2/judgment debtor did not have better title to enter into an agreement of sale. Therefore, prays the relief that the appellant/3rd party objector cannot dispossess and the decree passed in O.S.No.1298/1984 is not enforceable. 8. The respondent No.1/decree holder has filed objection to the application filed by the appellant/3rd party objection as it is not maintainable. Further, it is submitted that the appellant/3rd party objector does not have locus - 7 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 standi to file such application and the said application is collusive one with respondent No.2/judgment debtor, who have suffered decree in O.S.No.1298/1984. Therefore, the suit filed for partition in O.S.No.261/1992 is circumventing the decree passed in O.S.No.1298/1984. Therefore, with malafide intention to nullify the judgment and decree passed in O.S.No.1298/1984, the suit in O.S.No.261/1992 is filed for partition. 9. Further, it is submitted that the judgment and decree passed in O.S.No.1298/1984 is confirmed in R.F.Ano.415/1992. Therefore, the decree granting relief of specific performance is confirmed. Therefore, respondent No.1/decree holder has every right to enforce the decree. Further, it is submitted that upon the decree passed in O.S.No.1298/1984, Execution Case No.1129/1992 is filed. During the pendency of the said execution case, the appellant/3rd party objector has filed the suit in O.S.No.261/1992 in collusion with respondent No.2 and - 8 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 other family members. Therefore, prays to dismiss the application filed by the appellant/3rd party objector. 10. The trial Court after conducting an enquiry has dismissed the third party objector’s application. The reasons assigned by the trial Court is that the third party objector is the brother of respondent No.2/judgment debtor and the objector is claiming to have taken possession of the petition schedule property as per the compromise decree passed in F.D.P.No.4/1999. However, he has not produced the decree said to have been passed in Final Decree Proceedings. Therefore, the appellant/3rd party objector’s application filed is collusive one. Further, it was held that the appellant/3rd party objector was having knowledge regarding decree passed in O.S.No.261/1992 and the very fact that the third party objector has accepted the litigated property is concerned, it is nothing but the application filed is collusive one. It is observed that the joint family has 12 items of properties and the very fact that the appellant/3rd party objector had - 9 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 received the scheduled property which is nothing but showing the suit in O.S.No.261/1992 circumventing the decree passed in O.S.No.1298/1994 and is collusive one. Therefore, further it is observed that the objector has not gained any exclusive rival right over the possession of the property and hence, the decree obtained by the obstructor in O.S.No.261/1992 is not a bar for decree holder to proceed with the present execution petition and also found that the conduct of the appellant/3rd party objection is not bonafide and is collusive one only with respect to defeat the right of the decree holder in O.S.No.1298/1991. With these reasons, dismissed the appellant/third party objector’s application. 11. Being aggrieved by the dismissal of third party objector’s application, the 3rd party applicant/objector has preferred the present appeal by raising various grounds. 12. Learned counsel appearing for the appellant/3rd party objector submitted that respondent No.2 who was - 10 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 the defendant in O.S.No.1298/1991 was not the exclusive owner of the suit schedule property and whatever agreement of sale stated to have been executed between the decree holder/plaintiff and respondent No.2/judgment debtor does not take away the inherent right of a coparcener. The decree holder/respondent No.1 has entered into an agreement with respondent No.2/judgment debtor over the property on which respondent No.2/judgment debtor was not having any exclusive right and title over the property. Therefore, it is submitted that the agreement of sale itself is defective. Further, it is submitted that judgment and decree passed in O.S.No.1298/1984 is not binding on the third party objector as third party objector has become the owner and having title over the property by virtue of the judgment and decree passed in O.S.No.261/1992 and in FDP No.4/1999. Therefore, as per the judgment and decree passed in O.S.No.261/1992 and final decree proceedings passed in FDP No.4/1999, the schedule property was given - 11 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 to the share and vested with the third party objector and he is in possession. Therefore, the decree passed in O.S.No.261/1992 is not binding on the respondent No.1/decree holder in O.S.No.1298/1984. Further, it is submitted that the suit in O.S.No.261/1992 for partition, it is specifically decreed that the judgment and decree passed in O.S.No.1298/1984 is not binding on the third party objector who is plaintiff in O.S.No.261/1992. Therefore, in the Final Decree Proceedings, there was compromise petition entered into between the family members and coparceners and that suit schedule property was fallen to the share of the third party objector and thus he became the absolute owner and acquired title and which cannot take away by mere agreement of sale between the decree holder and judgment debtor by virtue of the alleged agreement of sale. For the reason that the respondent No.2/judgment debtor was not exclusive owner as on the date of agreement dated 11.07.1983. Further, it is submitted that the suit is O.S.No.261/1992 is - 12 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 filed for partition claiming the legitimate share over the joint family properties and is not an attempt of circumventing the decree passed in O.S.No.1298/1984. But in this regard, the Executing Court has wrongly misinterpreted. Thus, erroneous order was passed. Therefore, prays to allow the appeal and held that the decree passed in O.S.No.261/1992 is not binding on the appellant/3rd party objector and protect the possession of the appellant/3rd party objector. 13. On the other hand, learned counsel appearing for the respondent No.1 who was decree holder in O.S.No.1298/1984 submitted that respondent No.1/decree holder is having benefit of decree passed in OS No.1298/1984 and which is confirmed in RFA No.415/1992. Therefore, by virtue of the decree passed in O.S.No.1298/1984, the respondent No.1/decree holder is entitled for acquiring the title of property, but the appellant/3rd party objector has filed O.S.No.261/1992 just to defeat the decree passed in O.S.No.1298/1984 and is in - 13 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 attempt of circumventing the decree passed in the said suit filed for specific performance of contract. Further, it is submitted that suit in O.S.No.261/1992 though the respondent No.1/decree holder was made as party as defendant, but summons were not served. Therefore, behind back of the defendant No.5, decree is obtained in O.S.No.261/1992. Further, it is submitted that the decree passed in O.S.No.261/1992 is collusive one just to defeat the right and interest of respondent No.1/decree holder over the property. Further, it is submitted that in Final Decree Proceeding in FDP No.4/1999, final decree is not passed and unless decree is passed, the appellant/3rd party objector cannot have any right over the property by virtue of the decree passed in O.S.No.261/1992. Therefore, it is submitted that the Executing Court has considered all these aspects and has rightly dismissed the application. In support of his arguments, he placed reliance on the following judgments: - 14 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 1. The judgment of the Hon’ble Supreme Court in the case of A.V.Papayya Sastry and others vs. Govt. of A.P. and others1 2. The judgment of the Hon’ble Supreme Court in the case of Ram Chandra Singh vs. Savitri Devi and others2 3. The judgment of this Court in the case of Obamma and others vs. Sri. Boraiah and others3 4. The judgment of this Court in the case of Gavadu and others vs. Suresh Kallappa Makavi and others4 5. The judgment of this Court in the case of Ganapati (since deceased by LRs.) & others vs. V. Sukri (since deceased by LRs.) & another5 1 (2007)4 SCC 221 2 (2003)8 SCC 319 3 ILR 2016 KAR 4692 4 ILR 2004 KAR 5277 5 AIR 2009 (NOC( 667 (KAR) : 2009 (1) AIR KANT HCR 107 - 15 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 6. The judgment of this Court in the case of Sri. Papanna A., vs. Smt. B.N.Siddeshwari and others6 14. Upon hearing the arguments by learned counsel for the parties, the following points arise for consideration: i) Whether, under the fact and circumstances of the case, the appellant/3rd party objector proves the fact that he has acquired title by virtue of decree passed in O.S.No.261/1992 and in FDP No.4/1999 and thus entitled protection of his possession over the property? ii) Whether, under the facts and circumstances of the case, comparing the rights between the appellant/3rd party objector and the respondent No.1/decree holder, who is having more substantive right? iii) Whether, under the facts and circumstances of the case, the order passed by the Executing Court in dismissing the third party objector’s application filed under Order XXI Rule 99 of CPC requires interference? 6 2024(3) KCCR 2568 - 16 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 15. The evidence on record discloses the fact that there was an agreement between respondent No.1/decree holder and respondent No.2/judgment debtor dated 11.07.1983. As per this agreement of sale dated 11.07.1983, the respondent No.2/judgment debtor was shown as owner of the suit schedule property and thus entered into an agreement of sale with the decree holder/respondent No.1. For enforcement of agreement of sale, respondent No.1/decree holder has filed a suit in O.S.No.1298/1984 and the said suit is decreed. Against which, respondent No.2/judgment debtor has preferred an appeal in RFA No.415/1992 and it is dismissed. Thus judgment and decree in O.S.No.1298/1984 has attained finality. The question here for consideration, whether respondent No.2/judgment debtor was having exclusive right and title over the suit schedule property is entitled to enter into an agreement of sale with the respondent No.1/decree holder. Subsequently, during the course of execution of decree passed in O.S.No.1298/1984, the - 17 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 appellant/3rd party objector has filed an application invoking Order XXI Rule 99 of CPC claiming that he has acquired the title of property by virtue of decree passed in O.S.No.261/1992 and FDP No.4/1999, as the suit schedule property has been fallen to the share of the appellant/3rd party objector. Therefore, here the appellant is claiming right of the property as he has acquired title by virtue of the decree of partition passed in O.S.No.261/1992 and respondent No.1/decree holder has acquired the right by virtue of decree passed in O.S.No.1298/1984 for specific performance of contract. Comparing these, acquiring the rights between the parties, at this stage, whether the respondent No.2/judgment debtor was having exclusive right and title so as to enter into an agreement of sale with the decree holder dated 11.07.1983 is to be considered. The appellant has filed suit in O.S.No.261/1992 for partition and also relief of declaration to declare that the decree passed in O.S.No.1298/1984 is not binding on him. - 18 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 16. In the suit in O.S.No.261/1992, respondent No.1/decree holder was party as defendant No.5. It is the contention of the learned counsel for respondent No.1/decree holder that suit summons in O.S.No.261/1992 were not served on him and therefore, he was wrongly placed exparte. After passing the decree in O.S.No.261/1992, the respondent No.1/decree holder has filed Misc. Petition No.16/2001 which was dismissed on 25.09.2002 and also another Misc.Petition.No.13/2007 which was dismissed on 13.03.2018. Against which, Writ Petition No.4082/2018 which was dismissed on 16.02.2024. All these facts are not disputed. Therefore, the judgment and decree passed in O.S.No.261/1992 has attained finality. It is specific decree in O.S.No.261/1992 that not only granting 1/5th share to the plaintiff in all suit schedule properties by metes and bounds, it is also ordered and declared that the judgment and decree passed in O.S.No.1298/1984 is not binding on the plaintiff’s share. This decree is passed in O.S.No.261/1992 - 19 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 has attained finality. Against this judgment and decree, the appellant has filed Final Decree Proceedings in FDP No.4/1999 and in final decree proceedings, there was compromise petition was filed and was recorded that the final decree passed accordingly on 30.12.2000. Further, in O.S.No.261/1992, a specific issue was framed whether the plaintiff proved that the judgment and decree in O.S.No.1298/1984 is not binding on the plaintiff’s share and then it is answered by the trial Court in the said suit for partition in the affirmative holding that the decree passed in O.S.No.1298/1984 is not binding on the case of the plaintiff. Thereafter, in the final decree proceedings in FDP No.4/1999 dated 30.12.2000, it is decreed that in view of the terms and conditions of the compromise petition, it shall be treated as a final decree. Hence, final decree proceedings are closed. In final decree proceedings in FDP No.4/1999, a compromise petition was filed between the appellant and other family members and - 20 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 accordingly, by accepting the said compromise petition, final decree is passed. 17. At this stage, it is contended by the learned counsel for the respondent No.1 that there is no decree passed in final decree proceedings and therefore, as per the judgment and decree passed in O.S.No.261/1992, the appellant/3rd party objector has not acquired the title. As per his argument, it is contended that passing of a decree separately is essential in recognizing decree passed in the suit and in final decree, but in the present case, copy of decree is not produced. Therefore, it is submitted that the decree is not passed. Hence, it is contended that the appellant/3rd party objector has not acquired the title by virtue of the decree passed in O.S.No.261/1992 and FDP No.4/1999. This argument of the learned counsel for the respondent No.1 cannot be accepted, for the reason that there is no need to draw specific and separate decree in case where parties are compromised each other and the said compromise petition is treated as compromise decree. - 21 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 The decree is defined under Section 2(2) of CPC, which reads as under: (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final; 18. Therefore, when the compromise petition is filed and terms and conditions stated therein are to be treated as decree, which is the order passed by the Final Decree Court. Therefore, final decree passed in FDP No.4/1999 dated 30.12.2000. Therefore, by virtue of this - 22 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 decree, the appellant/3rd party objector has acquired the title of the suit property. Therefore, when all these factual matrix of the case are considered even before filing of the suit for partition in O.S.No.261/1992, the schedule property was belonging to the joint family. There is no evidence either by the respondent No.1/decree holder or by respondent No.2/judgment debtor to show that the suit schedule property was exclusively owned by the respondent No.2/judgment debtor before entering into an agreement of sale dated 11.07.1983. Therefore, even before executing agreement of sale, the appellant/3rd party objector was owner as a coparcener. The only question is to consider that whether respondent No.2/judgment debtor was not having exclusive right and title over the property and under what capacity he had entered into an agreement of sale is the matter for consideration and if it is executed, how far it is binding on the other co-parceners is the question to be considered. - 23 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 19. The appellant has filed O.S.No.261/1992 for partition claiming share in the property and accordingly, by judicial pronouncement in O.S.No.261/1992, the appellant/3rd party objector was given 1/5th share over the all the suit schedule properties and also declared that the decree passed in O.S.No.1298/1984 is not binding on the plaintiff’s share. When this being the undisputed factual matrix involved in the case, the decree obtained for specific performance of contract cannot defeat the right of the appellant as he has obtained his title and right by virtue of the decree passed in O.S.No.261/1992. 20. In Final Decree Proceedings in F.D.P.No.4/1999, the final decree passed by virtue of compromise petition and as per the terms and conditions therein, final decree is closed. Therefore, in partition suit, the suit schedule properties were fallen to the share of the appellant/3rd party objector. The argument canvassed by the learned counsel for the respondent No.1 that no prudent man can take schedule property and the very fact that the appellant - 24 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 has chosen the schedule property is nothing but circumventing the decree passed in O.S.No.1298/1984 and this argument cannot be accepted. When all these suit schedule properties put into for partition and if any property is under litigation, it cannot be said that the schedule property can be excluded from the partition. Any one of the coparcener may opt for the schedule property. Just because the property is in litigation that cannot be excluded so as to defeat the inherent right of coparceners share over the joint family properties. Therefore, in this regard, the Executing Court has not appreciated the third party objector’s application correctly, resulting into passing erroneous order. Therefore, when the appellant/3rd party objector has acquired the title and right on the decree passed in O.S.No.261/1992 for partition is having more substantive right to claim title over the property than to the right claimed by the respondent No.1/decree holder as he is mere decree holder by virtue of specific performance, that too when respondent No.2 - 25 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 did not have exclusive title and right to execute agreement of sale dated 11.07.1983 with respondent No.1/decree holder. 21. Therefore, the rights claimed by both appellant and respondent No.1/decree holder, the appellant is found to be having more substantive right over the right claimed by the respondent No.1/decree holder. Therefore, appellant/3rd party objector’s application is liable to be allowed. Thus, by virtue of decree passed in O.S.No.261/1992, the decree in O.S.No.1298/1984 is not binding on the share of the plaintiff. He is to be given full effect and force. Therefore, the decree passed in O.S.No.1298/1984 is not binding on the plaintiff and therefore, respondent No.1/decree holder cannot enforce the decree passed in O.S.No.1298/1984 and thus the possession of the appellant/3rd party objector shall have to be protected by entertaining the application filed under Order XXI Rule 99 of CPC. Accordingly, my answer to the - 26 - HC-KAR NC: 2026:KHC:28093 RFA No. 930 of 2018 points in the affirmative. Hence, I proceed to pass the following: ORDER i) The Regular First Appeal is allowed. ii) The order dated 08.02.2018 passed in Ex.No.1129/1992 in O.S.No.1298/1984, by the Court of the VII Addl. City Civil & Sessions Judge (CCH-19), Bengaluru, is hereby set aside. iii) The application filed by the appellant/3rd party objector under Order XXI Rule 99 of CPC, is hereby allowed. iv) Resultantly, execution filed by the respondent No.1/decree holder is found to be not executing one. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE KA List No.: 1 Sl No.: 37