Order 21 Rule 97 Application Can Be Dismissed If Obstructor Fails To Meet Prima Facie Right To Show Resistance: Karnataka High Court

The Karnataka High Court has held that an application made before the executing court under Order 21 Rule 97 of CPC, can be dismissed in limine if the obstructor fails to satisfy the court his prima facie right to show resistance to the execution.

A division bench of Justice Sreenivas Harish Kumar and Justice Ramachandra D Huddar found that the executing court was correct in dismissing the application because the applicants failed to prove that their father was not alive in 1998 when the sale deed was executed and that they were the legal heirs of Belagalappa.

“Enquiry can be held only when the executing court finds that the obstructor has got a semblance of right or interest which requires detailed enquiry. Satisfaction as to prima facie right or interest can be arrived at on reading the affidavit filed along with the application and supporting documents.”

 The court concluded that the applicants could not have filed the application under Order 21 Rule 97 in this situation.

The respondent K Ramappa had filed a suit for declaration of his title over the ‘suit property’. The respondent claimed to have purchased this land in 1998 and filed the suit as he was not able to update the revenue records. The suit resulted in a decree in his favour. The subsequent execution proceeding aimed to recover the compensation amount.

In the course of the execution proceeding, the applicants, who are the first defendant's siblings, submitted an application under various provisions of Order 21, including Rule 97 of the CPC, along with Sections 47, 94, and 151. The executing court dismissed this application, which led to the appeal.

The applicants argued that the executing court should have entertained their application, as they believed that their father was deceased at the time of the sale deed in 1998 and claimed to be the legal heirs of Belagalappa. The applicants contended that they were the daughters of Belagalappa.

The Court found that Rule 97 (Resistance or obstruction to possession of immovable property) allows applications when there is a decree for possession or when immovable property has been attached and sold in execution, and the auction purchaser faces resistance or obstruction.

“Plain language of the Rule makes it very clear as to under what circumstances an application under Rule 97 can be filed. The holder of a decree for possession may file an application to the executing court for removing the obstruction or resistance shown by any other person to the execution of the decree. Also if an auction purchaser finds resistance or obstruction to his taking possession of the property sold in auction, he can request the executing court to remove the obstruction. It is now a settled law that even a third party who has got interest in the property which is subject matter of the execution proceeding can file an application under Order 21 Rule 97 of CPC.”

Thus it observed that there must be a decree for possession or an immovable property should have been attached and sold in the course of execution proceeding and the auction purchaser should have found an obstruction to taking possession.

The bench added that even the taking of possession by an auction purchaser can be resisted by a third party if he has any kind of interest in the auctioned property. In this case, these two circumstances are conspicuously absent.

The Court observed that the respondent might have thought that he should seek a declaration of title over the suit property in order to claim the compensation amount. Since the compensation amount was lying in deposit somewhere, he sought its release in his favour by filing execution. The respondent being the decree holder did not apply for attachment of any immovable property, it was observed. 

“This being the position, the applicants could not have filed an application under Order 21 Rule 97 of CPC.”

Further, it opined that if it is the appellants' case that their father had died much before the sale deed in favour of the respondent came into existence, they should have filed a suit; they should not have approached the executing court.

"Taking note of these aspects, the executing court ought to have dismissed the application in limine, without holding any enquiry.”

Citing that Order 21 Rule 102 of CPC is one instance of dismissing the obstructor’s application at the initial stage, the court held that it may not entertain third-party application for any such other reasons as the court thinks not entertainable.

It added, 

“If this kind of examination is not done at the initial stage, and if enquiry is ordered on frivolous application, the decree holder can never reap the fruits of the decree. In this case the brother of the applicants was the first defendant in the suit. Instead of dismissing the application at the initial stage without holding enquiry, the executing court held an enquiry and gave findings that the applicant’s father was not alive in the year 1998 and that they were not the legal representatives of Belagalappa.”

Refusing to accept the contention about the applicability of resjudicata raised by the appellants if they decide to file a suit for an appropriate remedy, the court said that since the executing court has given findings on an application which was not at all maintainable, the findings affecting the applicant’s interest do not operate as res judicata in the subsequent suit that they may initiate.

Reliance was placed on Blue Star Employees’ Union v. Ex. Off. Principal Secy. To Government & Anr, AIR 2000 SC 3110, the Bench said, 

“The findings of the executing court while deciding the application under Order 21 Rule 97 of CPC do not operate as resjudicata in case they institute a suit for appropriate relief.”

Accordingly, the appeal was dismissed. However, it was clarified that -

“The Dismissal order does not affect the applicant’s interest if any, and they have liberty to agitate their right in the appropriate forum. Of course if any suit is filed, it is subject to limitation and in that event the applicant may plead for exemption under Section 14 of the Limitation Act and if they do so it is for the court to consider this plea in the background of pleaded material facts.”

Appearance: Advocate Raghuveer R Sattigeri for Advocate Chetan Munnoli for Appellants.

Citation: 2023 LiveLaw (Kar) 406

Case Title: Tayamma @Thippamma & Others AND K Ramappa & Others

Case No: REGULAR FIRST APPEAL NO. 100321/2019

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