VENKATARAYAPPA Vs. G MUNIYAPPA

JUDGEMENT

(1.) IN this writ petition, legality of the order dated 1-2-2005 passed in Execution Petition No. 18/2002 by the learned Civil Judge (Jr. Division), chintamani has been questioned by the decree holder/petitioner. Respondents 2 to 9 are the judgment debtors. Respondent No. 1 had filed IA No. 6 under Order 21 Rule 97 of CPC in the execution case to adjudicate his right to the suit property by holding an enquiry.

(2.) BRIEF facts necessary for consideration and disposal of this writ petition, as could be gathered from the record are : petitioner had instituted O. S. No. 113/1987 in the Court of the then Munsiff, at chintamani, for decree of permanent injunction against respondent Nos. 2 to 9, which was decreed on 25-3-1995. The said decree was questioned in RA No. 13/1995 which after hearing was dismissed on 7-12-2001. Petitioner has filed Execution No. 18/2002 to take action against respondents 2 to 9, alleging willful disobedience even after the decree for permanent injunction was passed against them. In the execution case, 1st respondent herein has filed IA No. 6 under order 21 Rule 97 to hold an enquiry and adjudicate his right. Since the Executing court had posted IA No. 6 for hearing, 1st respondent has filed IA No. 7 under Section 151 CPC to hold an enquiry of himself and his witnesses to prove the allegations made in LA No. 6 and to decide the matter on merit. IA No. 7 was contested by the petitioner/decree holder. Considering IA No. 7 and objections thereto, Executing Court has allowed LA No. 7 directing the applicant and decree holder to proceed with the enquiry on LA No. 6. Contentions :

(3.) SRI. G. Papi Reddy, learned Counsel appearing for the petitioner contended that, the decree passed in the original side having been affirmed by the Appellate Court, the same having attained finality, since meddling with the property by respondents 2 to 9 continued, execution proceedings were initiated against the judgment debtors, that the 1st respondent who has no right, cannot obstruct the execution proceedings. He contended that respondent No. 1 without showing prima facie legal right and possession over the property by producing material proof, cannot seek enquiry into the non-existing right and adjudication of the claim is wholly unnecessary. He contended that, provision under Rule 97 of Order 21 is not available for a person who is not a party to the proceedings and hence IA No. 6 filed by 1st respondent is patently bad in law and the same is liable to be dismissed without holding any enquiry. He relied on the decision of this Court in the case of Jesaraj ghasijmal Betal v. Ahammad Hussein reported in ILR 1986 Kar Page 2647 : (AIR1987 Kar 75 ). He contended that the lower court acting illegally and in excess of the jurisdiction, has allowed IA No. 7 without considering the rights of the petitioner.