Karnataka High Court
Smt Chetana vs Smt Ratna Siddaraju on 10 December, 2021
Bench: B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.49743/2019 (GM-CPC)
BETWEEN :
1. SMT CHETANA
D/O D M SHASHISHEKAR
AGED ABOUT 52 YEARS
R/A NO.E-209,
BRIGADE PETUNIA APARTMENT
17TH CROSS, 2ND A MAIN
BANASHANKARI II STAGE
BENGALURU-560 214
...PETITIONER
(By Sri. SAMPATH A., ADVOCATE)
AND :
1 . SMT RATHNA SIDDARAJU
W/O LATE G SIDDARAJU
AGED ABOUT 84 YEARS
2 . SMT NANDA
W/O LATE G S VINAY
AGED ABOUT 52 YEARS
ALL ARE R/AT #20/1,
NEW HIGH SCHOOL ROAD,
VISHESHWARPURAM,
BENGALURU-560 004
...RESPONDENTS
(By Sri. GOVINDARAJU L. ADVOCATE)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS IN EXECUTION PETITION NO.38/2017
DISPOSED OFF ON THE FILE OF 6 TH ADDITIONAL
PRINCIPAL JUDGE, FAMILY COURT, BANGALORE BY
ORDER DTD 24.07.2019 AND QUASH THE IMPUGNED
ORDER DTD 24.07.2019 PASSED BY THE 6TH ADDITIONAL
PRINCIPAL JUDGE FAMILY COURT BANGALORE IN
EXECUTION NO.38/17 VIDE ANNEXURE-G AND RESTORE
EXECUTION PETITION NO.38/2017 WITH A DIRECTION TO
THE 6TH ADDL. PRINCIPAL JUDGE, FAMILY COURT,
BANGALORE TO DISPOSE OF THE EXECUTION PETITION
IN TERMS OF THE COMPROMISE DECREE DATED
10.07.2015.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner is the decree holder in the
execution proceedings in Ex. Case No.38/2017 on the
file of the VI Additional Principal Judge, Family Court,
Bengaluru [for short, 'the executing Court']. The
petitioner has challenged the executing Court's order
dated 24.07.2019, and the executing Court by this
order has closed the execution proceedings recording
full satisfaction of the compromise decree in M.C.
No.1918/2011.
2. The facts in brief are that the petitioner and late
Sri.G.S.Vinay married in the year 1987 and the
petitioner commenced the proceedings in
M.C.No.1918/2011 in the year 2011 under the
provisions of the Hindu Marriage Act, 1955 for
dissolution of the marriage and Sri.G.S.Vinay. This
proceeding has ended in a compromise decree with the
dissolution of the marriage and Sri.G.S.Vinay agreeing
to pay to the petitioner a sum of Rs.1,15,00,000/- in
full and final payment of her claim towards
maintenance/permanent alimony. He has also issued
respective cheques dated 30.09.2015 and 30.11.2015
towards the payment of this amount agreeing to a
charge over one of the apartments in the proposed
apartment complex called Kino Platinum Apartments, on
Subedarchatram Road, Gandhinagar, Bengaluru in the
event the aforesaid cheques are returned without
payment. This compromise is accepted by the Family
Court on 10.07.2015.
3. Sri.G.S.Vinay has married the second respondent
on 30.03.2016, and within a period of ten months from
the date of marriage, he has breathed his last on
04.12.2016. The cheques issued by Sri.G.S.Vinay are
dishonoured and the petitioner has commenced
execution proceedings against Sri.G.S.Vinay in
E.P. No.63/2016, which is closed on the demise of
Sri.G.S.Vinay. Thereafter, the petitioner has
commenced the present execution proceedings against
the respondents - Sri.G.S. Vinay's mother, his daughter
from the petitioner and his second wife. The execution
petition as against the daughter is dismissed with her
deletion as one of the judgment debtors.
4. The respondents have filed their application with
the executing Court on 13.03.2019 offering to pay a
total sum of Rs.76,66,700/- as their part of the liability
of the amount assured with interest. The petitioner
has not filed objection to this application, and with the
petitioner accepting to receive the aforesaid amount, the
Family Court by the impugned order has closed the
execution petition recording full satisfaction with the
compromise decree.
5. This Court, at this stage, must also record that
Sri.G.S.Vinay had certain undivided share in the larger
property, generally identified as Kino Theater,
Bengaluru. With his daughter filing a suit asserting a
share therein, he has relinquished fifty percent [50 %] of
his undivided interest in such property to her retaining
the other fifty percent [50 %] of his undivided interest.
This larger property is offered for development and it is
asserted by the learned counsel for the petitioner that
the construction is almost complete, and the legal heirs
of Sri.G.S.Vinay viz., the respondents are entitled to
receive apartments proportionate to the undivided share
retained by him. The petitioner contends that even
before the institution of the proceedings in M.C.
No.1918/2011, Sri.G.S.Vinay had relinquished only fifty
percent [50 %] of his undivided share in the larger
property in favour of his daughter.
6. Admittedly, the petitioner has not received
the entire amount of Rs.1,15,00,000/- with interest,
and in terms of the compromise in M.C. No.1918/2011,
Sri.G.S.Vinay has agreed to create charge over one of
the apartments, and such charge created over 50% of
his undivided interest as against the entire amount of
Rs.1,15,00,000/- and interest. It is seen that the
executing Court, without any orders on the respondents'
aforesaid application dated 13.03.2019 offering to pay a
total sum of Rs.76,66,700/-, has closed the execution
proceedings because the petitioner has received the
amount tendered. With specific charge being created by
the deceased Sri.G.S.Vinay over one of the apartments
for the entire amount with interests, the respondents,
who have succeeded to the estate of Sri.G.S.Vinay,
could be liable for the entire amount with interest
subject to necessary material being placed on record.
7. The executing Court could not have closed the
execution proceedings, firstly without orders on the
respondents' application and secondly without an
enquiry on whether the respondents' liability should be
confined to two-third [2/3] of the obligation when
undisputedly, Sri.G.S.Vinay has created charge over one
of the apartments in the apartment complex called Kino
Platinum Apartments, on Subedarchatram Road,
Gandhinagar, Bengaluru.
8. Therefore, this Court must intervene and quash
the impugned order and restore the execution
proceedings in Ex. Case No.38/2017 to the executing
Court's Board for necessary enquiry and
reconsideration with liberty to the petitioner to file
objections to the respondents' application. Therefore,
the following:
ORDER
[a] The petition is allowed in part, and the
executing Court's impugned order dated
24.07.2019 is quashed restoring the execution
proceedings in Ex. Case No.38/2017 for
reconsideration to be disposed of after an
enquiry with reasonable opportunity to the
parties to place necessary material on record
with liberty as aforesaid.
[b] The respondents are restrained, subject to
further orders of the Family Court, from
alienating one of the apartments in the
apartment complex called Kino Platinum
Apartments, on Subedarchatram Road,
Gandhinagar, Bengaluru, that is allotted to the
estate of the deceased Sri.G.S.Vinay.
[c] Both the parties shall appear before the Family
Court without further notice from the Family
Court, on 07.01.2022.
Sd/-
JUDGE
RK/-
Ct: SN
