Karnataka High Court
Sri Gangappa vs Sri B S Manjunath on 3 June, 2024
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NC: 2024:KHC:19116
WP No. 10380 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
WRIT PETITION NO.10380 OF 2024 (GM-CPC)
BETWEEN:
1. SRI GANGAPPA
W/O. SIDDALINGAPPA
AGED 57 YEARS
RESIDING AT D. MADAKARIPURA
BHARAMASAGARA HOBLI
CHITRADURGA TALUK AND DISTRICT.
...PETITIONER
(BY SRI SIDDAPPA B.M., ADVOCATE)
AND:
1. SRI B.S. MANJUNATH
S/O H.B. NARASIMHAIAH
Digitally AGED ABOUT 79 YEARS
signed by V RESIDING AT NO. RUPAVANI
MANJUSHA
BAI TALKIES ROAD
Location: CHITRADURGA-577 501.
High Court of
Karnataka
2. SRI HANUMANTHAPPA
S/O SANJEEVAPPA
AGED ABOUT 99 YEARS,
3. SMT. JYOTHI
D/O. AMBARESHAPPA
AGED ABOUT 47 YEARS,
4. SMT. RANJITHA
D/O. AMARESHAPPA
AGED ABOUT 44 YEARS,
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NC: 2024:KHC:19116
WP No. 10380 of 2024
5. SMT. BHAVANA
D/O. AMARESHAPPA
AGED: MAJOR
ALL ARE RESIDING AT D. MADAKARIPURA
BHARAMASAGARA HOBLI
CHITRADURGA TALUK AND DISTRICT.
...RESPONDENTS
(BY SRI SPOORTHY HEGDE N., ADVOCATE FOR C/R1;
NOTICE TO R2 TO R5 IS DISPENSED WITH
VIDE COURT ORDER DATED 03.06.2024.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF
CERTIORARI OR ANY OTHER WRIT OR ORDER OR DIRECTION,
IN THE NATURE OF WRIT, QUASHING ORDER PASSED BY THE
LEARNED 1ST ADDITIONAL CIVIL JUDGE & JMFC.,
CHITRADURGA ON THE APPLICATION I.A.NO.11 UNDER
ORDER-1 R.10(2) OF CPC IN EX.NO.29 OF 2015 DATED
14.02.2024, VIDE ANNEXURE-E, TO THE WRIT PETITION, ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THROUGH PHYSICAL HEARING/VIDEO CONFERENCING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Respondent no.1 is the plaintiff in O.S.No.121/1999 on the file of the Additional Civil Judge (Jr.Dn.), Chitradurga and the petitioner is defendant no.3 in the said original suit.
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NC: 2024:KHC:19116 WP No. 10380 of 2024
2. The trial court has partly decreed the suit and has passed the following:
"ORDER The suit of the plaintiff is partly decreed, with costs.
The defendants No.1 and 2 are hereby directed to execute the registerd sale deed to the plaintiff after taken balance amount of Rs.4,550/- from the plaintiff in respect of suit schedule property for 2 acres and in sy.No.21 the defendants No.1 and 2 execute registerd sale deed for remaining 3 acres in sy.no.21 of Horakenahalli village, Bharamasagara hobli, Chitradurga Taluk, within 3 months from the date of this order.
Further, if the defendants fail to execute registered sale deed within time, the plaintiff is liberty to registered the same as per due process of law.
The plaintiff entitled cost from the defendant No.1 and 2.
Draw decree accordingly."
The said order has attained finality.
3. As can be seen from the above order, the decree is passed only against defendant nos.1 and 2 in the original suit and not against the petitioner, who was defendant no.3. However, to execute the decree passed in -4- NC: 2024:KHC:19116 WP No. 10380 of 2024 O.S.No.121/1999, respondent no.1/plaintiff in the original suit filed Execution No.29/2015, in which the petitioner herein was impleaded as judgment debtor no.3. Aggrieved by the same and on the ground that no decree has been passed against him, petitioner herein filed I.A.No.11 in the said execution petition. He prayed for him being deleted from the proceedings. However, by way of the impugned order dated 14.02.2023, the Executing Court has dismissed the said application. Aggrieved by the same, judgment debtor no.3 has preferred this writ petition.
4. Admittedly, no decree has been passed against the petitioner herein in the original suit and the decree holder in Execution No.29/2015 does not have any right or claim against the petitioner herein and he has got nothing to execute against him. Under the said circumstances, there is no necessity to continue Execution No.29/2015 against the petitioner herein. The Executing Court has failed to appreciate the same and has erroneously dismissed the -5- NC: 2024:KHC:19116 WP No. 10380 of 2024 application filed by the petitioner. For the said reason, the following order is hereby passed:
ORDER
(i) The impugned order dated 14.02.2023 passed by the Court of I Additional Civil Judge and JMFC, Chitradurga on I.A.No.11 in Execution No.29/2015 is hereby set aside;
(ii) I.A.No.11 filed under Order 1 Rule 10(2) of CPC by judgment debtor no.3/petitioner herein in Execution Case No.29/2015 is hereby allowed and the said execution petition is dismissed as against the petitioner herein;
(iii) The writ petition stands disposed of accordingly.
Sd/-
JUDGE hkh.