IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6 T H DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE N.S. SANJAY GOWDA
WRIT PETITION NO.106125/2019 (GM-CPC)
Between:
1. S.V. Sudarshan S/o.Vasudeva Setty,
Age 48 years, Occ: Merchant,
R/o.: Gudekote Village, Kudligi Taluk,
Ballari District.
2. S.V. Ramesh S/o.Vasudeva Setty,
Age 50 years, Occ: Merchant,
R/o.: Gudekote Village, Kudligi Taluk,
Ballari District.
... Petitioners
(By Smt.Sunita P. Kalasoor, Advocate)
And:
1. S.V. Kubera Gupta S/o.Vasudeva Setty,
Age 56 years, Occ: Merchant,
R/o.: Gudekote Village, Kudligi Taluk,
Ballari District.
2. S. Vasudeva Setty,
Since dead by his Legal representative
2(a) Smt. Vanajakshamma
W/o. Late Vasudeva Setty,
Age 67 years, Occ: Household,
:2:
R/o.: Gudekote Village, Kudligi Taluk,
Ballari District.
3. S.V. Jayaprasad S/o.Vasudeva Setty,
Age 52 years, Occ: Merchant,
R/o.: Gudekote Village, Kudligi Taluk,
Ballari District.
4. Nirmala D/o. Vasudeva Setty,
Age 54 years, Occ: Household,
R/o.: Sidegallu Village, Kudligi Taluk,
Ballari District.
5. Sumathi D/o. Vasudeva Setty,
W/o. Ashok Konnur, Age 48 years,
Occ: Household, R/o.: Sureban (Post),
Ramdurga Taluk, Belagavi District.
... Respondents
(by Shri Hanumanthareddy Sahukar, Advocate for R1;
R3 & R5 - served; R4 - ACK NYR)
This writ p etition is filed und er Articles 226 and
227 of the Constitution of India, praying to issue a writ
or a direction or an ord er in the nature of certiorari
ag ainst the order p assed in E.P.No.24/2016, p assed by
Civil Judg e and JMFC, Kudalag i on 02.02.2019 produced
as Anneuxure-E and etc.,
This petition coming on for orders, this day, the court
made the following:
:3:
ORDER
1. The third and fourth judgment debtors have filed this writ p etition.
2. The first respondent herein i.e., S.V. Kubera Gupta filed a suit seeking for p artition in O.S.No.57/2008. The said suit was decreed on 28 t h September 2013 and und er the said decree, the first respondent was granted 1/6 t h share in item Nos.1, 4 and 5 and his claim in resp ect of item Nos.2 and 3 was dismissed.
3. It is pertinent to state here that in the suit the p resent p etitioners were defend ant Nos.3 and 4 and though they were served, they choose to remain absent and were hence placed exparte.
4. Pursuant to the preliminary d ecree, the first respondent instituted p roceeding s to draw up a final decree in FDP No.7/2013 on 01.08.2016. In the final decree p roceedings, a Court Commissioner was appointed and he sub mitted a report reg arding division :4: of the prop erties and the Trial Court accep ted the report and p roceeded to draw up the Final Decree Proceedings on 06.11.2015.
5. It is p ertinent to state here that even in the Final decree p roceedings the first petitioner herein was rep resented by a counsel while the second petitioner though served with notice remained unrepresented .
6. The first respondent sought for execution of the Final d ecree by filing an execution petition in E.P.No.24/2016 on 01.08.2016. In the said execution petition, once ag ain the first petitioner was rep resented by an advocate while the second petitioner thoug h served with the notice chose to remain unrepresented and was placed exp arte.
7. The Executing Court after consid ering the matter, p roceed ed to allow the petition by its ord er dated 2nd of Feb ruary 2019. The execution p etition was opposed by the 1st petitioner contending that he had preferred an ap peal ag ainst the preliminary d ecree in R.A.No.11/2017 and the same was p ending and :5: therefore it would be in the interest of justice that the execution proceeding is not proceeded with. The Executing Court consid ered the said contention and came to the conclusion that since there was no interim ord er g ranted in Regular app eal, the execution proceedings could not be b rought to a stand still and accord ing ly proceeded to allow the execution.
8. It is ag ainst this ord er, the present writ petition is filed .
9. The learned counsel for the petitioner contend ed that until the Reg ular appeal filed by the 2nd petitioner is consid ered, it would be improper for the decree to b e executed. She contended that if the decree is executed the app eal would b e rendered infructuous and therefore in the interest of justice the execution proceedings are required to b e stayed .
10. On the other hand learned counsel app earing for the contesting respondent i.e., plaintiff submitted that this was merely a dilatory tactic to prevent the plaintiff from reaping the fruits of a d ecree that he had :6: obtained way b ack in the year 2013. He sub mitted that the p etitioner herein chose not to contest the suit or final decree proceed ings and therefore could not be permitted to stall the execution.
11. I have considered the sub mission made by the learned counsel for the p arties and also perused the material on record.
12. It is not in dispute that the plaintiff had obtained a d ecree on 28.09.2013. It is also not in dispute that in the original suit, the 1st p etitioner chose to remain absent and the 2nd petitioner though rep resented by a counsel did not take any steps to challenge the decree. In other wards, the 2nd petitioner though being aware of the d ecree did not chose to prefer an appeal till year 2017. It is pertinent to note here that the 1st p etitioner has accepted the decree and has not even preferred an app eal.
13. It is also pertinent to note that in the Final decree p roceed ings, the p etitioners did not contest the proceedings and they allowed final decree p roceedings :7: to be d rawn up and only when the execution of the decree was taken up they chose to contest the proceedings on the execution sid e.
14. In my view, the conduct of petitioners disentitles them from being giving any p rotection. If the decree p assed in favour of the plaintiff is ultimately set aside in app eal the 2nd petitioner would have the remed y of seeking for restitution and therefore no prejudice will b e caused if the d ecree is executed.
15. I find no reasons to interfere with the impugned order and this writ petition is accordingly dismissed.
Sd/-
JUDGE Vnp* & EM