Susheela V. Shetty vs Sarojini and Others

Budihal R.B., J.—1. Heard the learned Counsel appearing for the Writ Petitioner and also the learned counsel appearing for the respondent - plaintiff.

This Writ Petition is filed by the Writ petitioner - obstructer challenging the order passed by the trial Court dated 04.04.2015 on the application I.A. No. 2 (Annexure-E) and also to quash the judgment and order dated 06.01.2016 passed by the Principal Senior Civil Judge, D.K. in M.A. No. 13/2015 (Annexure-H).

The learned Counsel appearing for the Writ Petitioner made the submission that earlier husband of the present Writ Petitioner was the tenant of the suit schedule property. After demise of her husband, the present Writ Petitioner continued in the suit schedule property and continued the hotel business, which was run by her husband. The learned Counsel further made the submission that the respondent-plaintiff filed the suit against the sons of the present Writ Petitioner without arraying the present Writ Petitioner as a party in the suit seeking possession of the suit schedule property. Hence, the learned Counsel submitted that the judgment and decree was obtained behind her back though she continued in possession and she was not arrayed as a party. He also made the submission that as the judgment and decree was not challenged before the Appellate Court, the respondent - plaintiff filed the Execution Petition and looking to the order passed by the Executing Court, it was observed that since the decree is within two years, notice was dispensed with to the Judgment Debtor and delivery warrant was issued. The learned Counsel submitted that when the Court Ameena came to execute the delivery warrant, then only the present Writ Petitioner came to know about the suit and judgment and decree passed in the said suit. Immediately, thereafter, she filed an application I.A. No. 2 under Order XXI Rule 97 of CPC. The learned Counsel submitted that when such an application was filed by the Writ Petitioner, the Executing Court was supposed to conduct an enquiry but without such enquiry, the Executing Court proceeded to pass the order on the application I.A. No. 2 and the said application was rejected which procedure is illegal and hence, learned Counsel submitted that even in the order which was passed by the Executing Court wherein it was referred that the licence to run the hotel business is in the name of present petitioner. Inspite of that, no proper enquiry was conducted in the matter and hence, it is his submission that to avoid multiplicity of proceedings, it is necessary to set aside the order passed by the trial Court on the application I.A. No. 2 and to direct the Executing Court to conduct enquiry on the application filed by the Writ Petitioner and then to proceed in the matter in accordance with law. In support of his contentions, the learned Counsel appearing for the Writ Petitioner relied upon two decisions reported in , AIR 1998 SC 1827 and , ILR 1991 KAR 254 (DB).

Per contra, the learned Counsel appearing for the respondent - decree holder during the course of argument made the submission that it is not an ex-parte decree. Before filing the suit, legal notice was issued to the sons of the present Writ Petitioner terminating the tenancy and asking the tenants to hand over the vacant possession of suit schedule property. The learned Counsel also made the submission that even suit summons were issued and the respondent''s children appeared in the matter. They have contested the suit by filing the written statement. The trial Court in view of the contention raised by the 2nd defendant in the written statement, which was adopted by the defendant No. 1 in the said suit, framed the necessary issues and after considering the material placed on record, ultimately decreed the suit. The learned Counsel submitted that whatever the contentions raised by either side were all considered in the earlier suit and they were raised by the defendants in the said suit with regard to running of the hotel business. Hence, the learned Counsel made the submission that the judgment and decree passed by the trial Court is just and proper and it becomes final as it was not challenged before the Appellate Court. In the Execution Petition filed by the decree holder, the present Writ Petitioner, who is the mother of the defendant Nos. 1 and 2 in the said suit cannot maintain such an application unless and until she produces the document to show that she is having the independent title of her own in respect of suit schedule property. He also made the submission that the Court below also observed that the hotel business was stopped and even the defendants have deposed before the Court that because of the road widening process undertaken by PWD authorities, the hotel business was stopped till date. Hence, he further made the submission that the trial Court also gave a direction to give the mesne profits also and hence, it is his submission that notice issued to one of the joint tenant is sufficient and there is no necessity to issue such notice to all such persons. Hence, the learned Counsel submits that no illegality has been committed by the trial Court in rejecting the application. In support of his contentions, the learned Counsel relied upon the decisions of the Hon''ble Supreme Court reported in , AIR 1989 SC 1470 and , AIR 2001 SC 2251 and another judgment of this Court reported in IIR 2007 KAR 4396.

I have perused the grounds urged in the Writ Petition and the judgment and decree passed by the trial Court dated 27th July 2013 passed in O.S. No. 369/2010. So also, I have perused the order passed by the Executing Court on the application filed by the present Writ Petitioner under Order XXI Rule 97 CPC. Looking into the judgment and decree passed in the suit, as it is rightly submitted by the learned Counsel appearing for the respondent - plaintiff, defendants 1 and 2, children of the present Writ Petitioner, appeared in the matter, filed the written statement and contested the suit. The judgment and decree also goes to show with regard to the contentions raised in the written statement that they were running the hotel business and the licence is in the name of their mother i.e., the present Writ Petitioner herein. So all the contentions, which the present Writ Petitioner is canvassing in the application - I.A. No. 2, were already taken in the suit itself and the same was considered by the Court below. After that only, the judgment and decree was passed in the said suit, which becomes final as it was not challenged before the Appellate Court. Therefore, looking to the principles enunciated by the learned Counsel for the respondent - plaintiff, the Writ Petitioner has to establish that she is having her own independent title in respect of the suit property to maintain application I.A. No. 2 filed under Order XXI Rule 97 CPC. I have perused the decisions relied upon by the learned Counsel appearing for the Writ Petitioner herein which are referred to above and also the principles enunciated in the said decisions. Even according to the said decision also, it is required for the Writ Petitioner to establish her own independent right over the suit schedule property. By perusing the material placed on record, the Writ Petitioner has not at all placed any such document to show that she is having any independent right over suit schedule property apart from the rights of her children. Considering all these aspects of the matter, I am of the opinion that the decisions relied upon by the learned Counsel appearing for the Writ Petitioner are not coming to the aid and assistance of the Writ Petitioner and there is no merit in this Writ Petition. No illegality is committed by the Executing Court while passing the order. Accordingly, the Writ Petition is hereby rejected.