Puttasiddamma vs Doddarayapete Siddaiah

A.V. Chandrashekara, J.—The present petition is filed under Article 227 of the Constitution of India challenging the order passed on 04.07.2014 on I.A. VIII in Execution Petition No. 53/2008 pending on the file of the Court of Prl. Civil Judge and JMFC., Chamarajanagar.

The petitioner had filed an application under Order I Rule 10(2) of the CPC in Execution Petition No. 53/2008 arising out of the judgment and decree passed in O.S. No. 104/2001. She wanted to come on record as the legal representative of the deceased decree holder Doddarayapete Siddaiah. During the pendency of the execution petition, decree holder Doddarayapete Siddaiah died and his wife, four sons and one daughter have been brought on record as his legal representatives to prosecute the Execution petition.

The petitioner is one of the daughters of the deceased decree holder Doddarayapete Siddaiah and her husband is judgment debtor No. 1 - Chandraiah and judgment debtor No. 2 - Sreenivasa is her son. All of them are stated to be residing in the schedule property. The case put forth before the executing Court by this petitioner is that she has acquired right consequent upon the death of her father and therefore, she is also entitled to be heard as one of the decree holders.

Learned counsel for the petitioner has vehemently argued that the trial Court could not have dismissed I.A. VIII filed under Order I Rule 10(2) of CPC., since the petitioner has a semblance of right being the daughter of Doddarayapete Siddaiah, who died intestate.

Learned counsel appearing for respondent No. 4 has vehemently opposed the writ petition. After having heard the learned counsel appearing for the parties, the point that arises for consideration by this Court is as follows:

Whether the discretion vested under Article 227 of the Constitution of India could be exercised in a case like this?

As could be seen from the records, Doddarayapete Siddaiah was the owner of the schedule property, which is described as a house. Petitioner is the wife of one Chandraiah. She has a son by name, Sreenivasa, born out of her legal wedlock with Chandraiah. Petitioner is the daughter of Doddarayapete Siddaiah. This factual aspect is not disputed by the learned counsel appearing for respondent No. 4. As could be seen from the records, Doddarayapete Siddaiah had filed a suit for eviction against Chandraiah and Sreenivasa, being the husband and son of writ petitioner respectively in O.S. No. 104/2001, which was pending on the file of Prl. Civil (Jr. Dn.), Chamarajanagar. The said suit was decreed, as against which, an appeal was filed u/s 96 of C.P.C., in R.A. No. 54/2004 before the Civil Judge (Sr. Dn.) & CJM., Chamarajanagar. The said appeal came to be dismissed after contest.

Against the concurrent finding, a Regular Second Appeal was filed u/s 100 of CPC., in RSA No. 118/2008 and this Court has dismissed the said R.S.A. at the time of admission holding that there are no good grounds to admit the appeal. As could be seen from paragraph No. 8 of the judgment passed by this Court in RSA No. 118/2008 on 18.07.2011, it is evident that the husband and son of the petitioner herein had raised a plea that petitioner herein is the daughter of Doddarayapete Siddaiah and on account of a proximate relationship, they have continued to be in possession of the property. The said contention has been clearly discussed in paragraph No. 8 at page No. 6 of the judgment passed in RSA No. 118/2008.

After dismissal of RSA No. 118/2008, the petitioner had even gone to the extent of filing an application in I.A. V under Order XXI Rule 97 of CPC., before the Executing Court obstructing the execution of the decree arising out of O.S. No. 104/2001. The said application has also been dismissed. Taking overall consideration of the facts and circumstances of the case, the Executing Court has dismissed the application, I.A. VIII, filed under Order I Rule 10(2) of CPC.

The learned counsel for the petitioner has relied upon the decision of the Apex Court in the case of Bhagwan Swaroop and Others Vs. Mool Chand and Others, , wherein provisions of Order XXII Rule 4 and Order I Rule 10 of CPC., have been discussed. What is held in this decision is that if the legal representative application is not brought on record within time, the applicants can come on record as necessary parties under Order I Rule 10(2) of CPC. It is held that when a specific provision is made as provided under Order XXII Rule 4 of CPC., a party cannot resort to general provision like Order I Rule 10 of CPC. It is further held that the laws of procedure are devised for advancing justice and not impeding the same and that a CPC is designed to facilitate justice and further it ends and the same is not a penal enactment for punishment and penalties. There is absolutely no second opinion about the law laid down by the Hon''ble Supreme Court in the above decision. But, in the instant case, Order I Rule 10 of CPC., has been invoked in Execution petition. This Court in the case of Choodanatha Setty Vs. Gopalachetty, has held that the provisions of Order I Rule 10 of CPC., are not applicable to Execution proceedings as nothing is to be decided in a case filed for executing the Court decree.

Even otherwise, from the facts and circumstances of the present case, the point that the petitioner intends to urge before this Court has already been urged on her behalf by her husband and her son in the R.S.A. No. 118/2008 and that has been considered in paragraph No. 8 of the judgment passed by this Court. The trial Court has also considered the entire facts and circumstances of the case and has specifically held that the petitioner herein-applicant is not a necessary party in Execution proceedings. Taking into consideration the elaborate discussion made by the trial Court in the light of various facts and circumstances of the case, this is not a fit case in which supervisory jurisdiction vested under Article 226 of the Constitution of India could be exercised in favour of the present petitioner in this case. Hence, the petition is liable to be dismissed.

ORDER

Petition is dismissed. Notwithstanding the dismissal of this petition, petitioner is entitled to pursue any other remedy available under law to her as she is the daughter of deceased father who was the owner of the property.

There is no order as to costs.