A M SUBBAMMA Vs. A V KUSHALAPPA

JUDGEMENT

(1.) APPELLANT in this appeal was an objector in Exc. 15/2000 on the file of the Civil Judge (Sr. Dn.), Madikeri, which application was filed by the appellant under Order 21 Rule 97 of CPC. R-1 was the d. Hr. and R-2 to 8 were the J. Drs. before the trial Court. For the sake of convenience parties would be referred to as per their status before the trial Court.

(2.) KUSHALAPPA, D. Hr. , was the plaintiff in O. S. 15/90 on the file of the Civil Judge (Sr. Dn.), Madikeri. The suit was filed by him for partition and separate possession of his share in respect of plaint A-Schedule property and for declaration in respect of plaint b-Schedule property. The suit filed by kushalappa was decreed in part so far as it relates to B-schedule property and the partition in respect of A-schedule property was rejected. Against which he preferred an appeal before this Court in RFA 780/1996. During the pendency of the appeal before this Court, A. P. Mandanna who was one of the respondent-defendant and who was also the husband of the present appellant and father of R-5 to 7, died. After the death of mandanna, his three sons on their own filed an application to come on record as legal representatives, which application came to be allowed. Subsequently, the appeal was ended in a compromise. In term of the compromise, judgment and decree of the trial court was modified. R.- 1 plaintiff filed an execution to execute the decree in Exc. 15/ 2000. In the said execution petition, present appellant filed an application as an objector under Order-21 Rule 97 of CPC contending that the compromise decree passed by the high Court of Karnataka was not binding on her since she was not a party to the appeal. Before filing an application under Order 21 Rule 97 of CPC, appellant herein has filed a suit for partition before the Civil Judge (Sr. Dn.), Madikeri in O. S. 142/99 contending that the compromise entered into between Kushalappa and others with three sons of the appellant does not bind her share. In the said suit, properties involved in Exc. 15/2000 are the subject matters of the suit.

(3.) D. HR. Kushalappa filed his objections contending that the application filed by the appellant under Order 21 Rule 97 of CPC as maintainable. According to him, three sons of the appellant on their own came on record as the legal representatives of mandanna and they represent the estate of deceased Mandanna and such a compromise is binding on the appellant. It is also contended that when a suit for partition is filed before the Civil Judge, Mercara, on the same ground for the same relief appellant cannot maintain an application under Order 21, rule 97 of CPC. Trial Court, after considering the case pleaded by both the parties, has dismissed the application filed under Order 21, Rule 97 of CPC by its order dated 16-1-2003. Being aggrieved by the order of the trial Court in rejecting the application filed under Order 21 Rule 97 of CPC, present appeal is filed.