M. Maliyiah vs Doddegowda
2021 Latest Caselaw 1345 Kant

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

   DATED THIS THE 22ND DAY OF JANUARY 2021

                   BEFORE

  THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR

    WRIT PETITION No.1925 OF 2015 (GM-CPC)

BETWEEN:

M. MALIYIAH,
S/O LATE MALLEGOWDA,
SINCE DECEASED BY HIS LRs.

1(a) GANGAMMA,
     W/O LATE MALIYAIAH,
     AGED ABOUT 65 YEARS,

1(b) NEELAVATHI,
     D/O LATE MALIYAIAH,
     AGED ABOUT 44 YEARS,

1(c) M. VISHNU PRASAD,
     S/O LATE MALIYAIAH,
     AGED ABOUT 40 YEARS,

1(d) VRUSHUBA KRISHNA MURTHY,
     S/O LATE MALIYAIAH,
     AGED ABOUT 38 YEARS,

1(e) M.JAYAPRAKASH,
     S/O LATE MALIYAIAH,
     AGED ABOUT 35 YEARS,

1(f) M.GAYATHRI,
     D/O LATE MALIYAIAH,
     AGED ABOUT 30 YEARS,
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1(g) LAKSHMI,
     D/O LATE MALIYAIAH,
     AGED ABOUT 42 YEARS,

       ALL ARE RESIDENT OF
       FARM HOUSE,
       MALLUPURA VILLAGE,
       BILIGERE HOBLI,
       NANJANGUD TALUK,
       MYSURU DISTRICT.
                                     ...PETITIONERS

(BY SRI. S. ANILKUMAR, ADVOCATE)

AND:

1.     DODDEGOWDA,
       S/O KULLEGOWDA,
       AGED ABOUT 76 YEARS,
       R/OF ALAGANCHIPURA VILLAGE,
       BILIGERE HOBLI,
       NANJANGUD TALUK,
       MYSURU DISTRICT.

2.     RAJAPPA,
       S/O DODDEGOWDA,
       AGED ABOUT 47 YEARS,
       R/OF ALAGANCHIPURA VILLAGE,
       BILIGERE HOBLI,
       NANJANGUD TALUK,
       MYSURU DISTRICT.
                                 ... RESPONDENTS

       (BY SRI. P. MAHESHA, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF
INDIA PRAYING TO QUASH THE ORDER PASSED BY
THE PRL. CIVIL JUDGE (JR DVN) & JMFC, NANJANGUD
IN EX.NO.70/2011 DATED 19.12.2014 AT ANNEXURE-
G, AND ETC.
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     THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE
COURT MADE THE FOLLOWING:-

                        ORDER

This petition by the decree holder in Execution

Petition No.70/2011 on the file of the Civil Judge,

Nanjangud is directed against the impugned order

dated 19.12.2014, whereby the trial Court allowed

the application filed by the respondents/judgment

debtors thereby directing the petitioner/decree holder

to execute the discharge deed in favour of

respondents within a period of one month.

2. Heard the learned counsel Sri. Anilkumar,

for petitioners and learned counsel Sri. P.Mahesha, for

respondents.

3. Perusal of the application filed by

respondents before the trial Court (Execution Court)

will indicate that it was the specific contention of the

respondents that pursuant to the judgment and

decree passed in R.A.Nos.36/2009 and 1/2010 dated

17.08.2011, respondents had paid entire decreetal

amount in favour of the petitioner. The said

contention was seriously disputed by the

petitioner/decree holder as can be seen from the

statement of objections filed by the petitioner to the

aforesaid application. By the impugned order, the

trial Court came to the conclusion that respondents

had paid entire decreetal amount and consequently

allowed the said application.

4. In my considered opinion in the light of

the provision contained in Section 47 of CPC, in view

of the disputed question of fact that arises on account

to rival contentions with regard to the discharge and

satisfaction of the decree referred to supra, it was

necessary to trial Court to conduct an enquiry and

thereafter render a finding with regard to the

discharge or satisfaction of the said decree and failure

on the part of the trial Court to do so has resulted in

failure of discharge warranting interference by this

Court under Article 227 of the Constitution of India.

In the result, I pass the following

ORDER

Petition is allowed.

Impugned order dated 19.12.2014 is hereby set

aside. The matter is remitted back to the trial Court

to conduct an enquiry and adjudicate upon the

application filed by the respondents in accordance

with law bearing in mind Section 47 of CPC and after

giving sufficient opportunity to both sides.

Subject to the aforesaid directions, petition

stands allowed.

Sd/-

JUDGE

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