GANGADHARASWAMY, Vs. P KUMAR,

JUDGEMENT

(1.) THESE appeals are directed against the common order passed by the Execution Court (Court of the XXV Additional City Civil Judge), Bangalore on I.A.Nos.12 and 18 to 20 in Execution Case No.434/2008.

(2.) THE facts of the case in brief are that the first respondent in both the appeals purchased the execution petition schedule property from Sri Mayanna (respondent No.2 in both the appeals) by a registered sale deed, dated 5.4.2006. The respondent No.2 had taken three months time to vacate the execution petition schedule property and hand over its vacant possession to the respondent No.1. As the respondent No.2 did not keep up his promise, the respondent No.1 filed O.S.No.10179/2006 against the respondent No.2 seeking a direction to the respondent No.2 to hand over the vacant possession and to pay the damages at the rate of Rs.5,000/ - per month from the date of the suit till he vacates. The respondent No.2 remained exparte. The Trial Court decreed the said suit directing the respondent No.2 to vacate the schedule property and hand over its vacant possession to the respondent No.1 within three months. The respondent No.1 filed Execution Petition No.434/2008. In the said execution proceedings, he has also filed I.A.No.12 invoking Order 21 Rule 97 for issuing the delivery warrant after noticing the obstruction of some persons. The grievance of the respondent No.1 in the execution proceedings is that the respondent No.2 has set up his children and elder brother to resist the dispossession. The children and elder brother of the respondent No.2 filed two separate applications I.A.No.3 and 8 invoking Order 21 Rule 58 of CPC. They contended that they were deliberately not made parties to O.S.No.10179/06. They contended that the respondent No.2 is neither the absolute owner nor the exclusive possessor of the suit schedule property. They claimed that the suit schedule property belongs to their joint family. They also claimed that they have contributed the amounts towards the sale consideration of the property in question. Their I.A.Nos.3 and 8 were allowed by the Execution Court, by its order, dated 27.11.2008. However, the said orders were set aside by this Court, by its order, dated 4.11.2010 passed in W.P.Nos.31522/2009 and 33563/2009 filed by the first respondent. The matter was remitted back to the Execution Court to pass appropriate orders after affording opportunities to the parties. Thereafter, the decree -holder filed I.A.No.12 and the obstructors filed the objections separately. The obstructors also filed I.A.No.18 seeking the permission to lead further evidence, I.A.No.19 to re -open the case and I.A.No.20 for the production of documents.

(3.) ON the rival contentions raised, the Execution Court formulated the following points for its consideration: