Vikram vs Sarala Siddanna

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 07.07.2014 passed in E.P. No. 1001/2014 as at Annexure-E to the petition.

The first respondent herein is the decree holder who has levied the execution petition to execute the order passed in HRC No. 15/2006. In the execution petition filed against the respondents No. 2 and 3, the petitioners herein claiming to be the owners of the property having purchased the same under a registered sale deed dated 16.06.2014 have filed an application under Order XXI Rules 97 and 99 read with Section 47 of CPC seeking determination of their independent right to the property regarding which the execution petition is filed. In the said proceedings, the petitioners have contended that the sale deed based on which they have claimed right by filing the application under Order XXI Rules 97 and 99 read with Section 47 of CPC would on the face of it indicate that the value of the property is Rs. 6,00,000/-. In that view, it is contended that since the execution petition is pending before the Court of Prl. Civil Judge and JMFC, Belgaum whose pecuniary jurisdiction is up to Rs. 5,00,000/-, the application is to be tried as a suit and as such the execution petition is to be returned to be presented before the Court of the Civil Judge (Sr. Dn) who would have the pecuniary jurisdiction to entertain the same.

The Court below on considering the contention put forth by way of application filed under Order VII Rule 10(2) read with Section 151 CPC has rejected the said contention and has held that the execution petition along with the application filed under Order XXI Rules 97 and 99 of CPC is to be considered by it and the same need not be returned. The obstructor-applicant is therefore before this Court in this petition.

I have heard the learned counsel appearing for the parties and perused the petition papers.

The facts narrated above itself would indicate the nature of contentions that was put forth before the Executing Court as also before this Court on behalf of the obstructor seeking return of the papers to be presented before the Court having pecuniary jurisdiction.

In that light, the very perusal of the order would disclose that the sale deed dated 16.06.2014 indicates the value of the property at more than 5 lakhs. It is also not in dispute that the pecuniary jurisdiction of the Civil Judge would be up to Rs. 5 lakhs. In that background, the question for consideration is as to whether such contention can be accepted in a circumstance the execution petition is filed and an application is filed under Order XXI Rules 97 and 99 of CPC therein. In that light, since it is contended that the property to which the obstructor claims right is more Rs. 5 lakhs; should the Executing Court return the petition to be presented to the Court having pecuniary jurisdiction to entertain a proceedings wherein the subject matter of the property is more than 5 lakhs.

The position of law is not in doubt that a proceedings to consider an application under Order XXI Rules 97 and 99 of CPC would be similar to a suit and the decision taken thereof would be a decree. Merely because that is the position, the question is as to whether the same should be decided by a Court which has the jurisdiction to decide a suit though such contention has arisen in an execution petition. In my opinion, though the ultimate decision on the application under Order XXI Rule 97 of CPC has the force of a decree, the decision would still remain to be on an interlocutory application filed before an Executing Court. Therefore the initial jurisdiction of the Court to entertain main proceedings wherein such application is filed under Order XXI Rule 97 would continue to remain so and merely because the obstructor files an application and claims the value of the property to be more than the pecuniary jurisdiction for a suit, at that stage itself, the Executing Court cannot assume that the obstructor had made out a right and return the papers to be presented before another Court since the right of the obstructor is to be decided.

To the said extent, the provisions contained in Rule 101 of Order XXI would become relevant. Hence, at that stage itself, it cannot be returned to be presented before another Court. Therefore, if this aspect of the matter is kept in view, I am of the opinion that the Executing Court has not committed any error in dismissing the application filed under Order VII Rule 10(2) of CPC.

Hence the writ petition being devoid of merit stand disposed of.