Karnataka High Court
Channegowda vs Smt Manjamma on 28 January, 2021
Author: Krishna S.Dixit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.4209 OF 2020 (GM-CPC)
BETWEEN:
CHANNEGOWDA,
AGED 76 YEARS,
S/O LATE RUDREGOWDA,
RESIDENT OF PRAKASH ELECTRICAL,
HAND ELCTRONICS,
GOWRIKOPPALU MAIN ROAD,
VIDYANAGARA,
HASSAN.
...PETITIONER
(BY SMT. HAMSA N RAJ, ADVOCATE)
AND:
1. SMT. MANJAMMA,
SINCE DEAD, REPRESENTED BY LRS
A. SATHYANARAYANA,
S/O LATE PUTTEGOWDA,
AGED ABOUT 81 YEARS,
A. MOHAN KUMAR,
S/O SATHYANARAYANA,
AGED ABOUT 43 YEARS,
C. JAGADEESH H S,
S/O SATHYANARAYANA,
AGED ABOUT 41 YEARS,
ALL ARE RESIDENTS OF
P AND T QUARTERS ROAD,
SHANKARI PURAM,
HASSAN-573201.
2
D. SMT. S GEETHA,
AGED ABOUT 45 YEARS,
W/O RAMESH K R,
D/O SATHYANARAYANA,
R/O KOWSHIKA VILLAGE,
SHANTHIGRAMA HOBLI,
HASSAN TALUK-573201.
E. SMT. LEELAVATHI,
AGED ABOUT 39 YEARS,
W/O NAGARAJENDRA,
R/O D.NO.60, AIMS QUARTERS,
D-BLOCK, B J NAGAR,
NAGAMANGALA TALUK-571432.
2. SMT. DODDAMMA,
AGED ABOUT 68 YEARS,
W/O DORESWAMY,
BANDIHALLI VILLAGE,
DUDDA HOBLI,
HASSAN TALUK,
HASSAN DISTRICT-573201.
...RESPONDENTS
(BY SRI. GIRISH KUMAR B M, ADVOCATE FOR R1(C,D &E);
R1(A)(B) -SERVED AND UNREPRESENTED;
R2 SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENTIRE ORDER DATED 31.10.2019 PASSED IN EX.138/2018 ON
THE FILE OF THE II ADDL. CIVIL JUDGE (JR.DN) HASSAN ANNX-
A AND AWARD COSTS.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING - B GROUP, THIS DAY THROUGH VIDEO
CONFERENCE, THE COURT MADE THE FOLLOWING:
3
ORDER
Petitioner being the judgment debtor in Execution
No.138/2018, is knocking at the doors of writ court for
assailing the order dated 12.12.2019, a copy whereof is at
Annexure-A, whereby his applications filed under Sections
151, 152 & 153 of CPC, 1908 for restoring the said execution
case, has been rejected.
2. After service of notice, the respondent-decree
holders having entered appearance through their counsel,
resist the writ petition making submission in justification of
the impugned order and the grounds on which it is
structured.
3. Having heard the learned counsel for the parties
and having perused the petition papers, this Court is inclined
to grant indulgence in the matter because:
(a) The subject execution proceedings were founded on a
decree dated 29.6.2005 granted in a partition suit in
O.S.No.109/1999 and that the said decree has been upset in
R.A.No.10/2013, allowed on 16.10.2017 and the suit has
been remanded for trial afresh; thus, the substratum on
which the execution proceedings were structured having
withered away, the application for restoration of the execution
case ought to have been favoured so that the petitioner would
have sought for restitution or the like; this opportunity has
been wrongly denied to the petitioner.
(b) The legal lacuna apparent on the face of the impugned
order is of great magnitude; where pursuant to levy of
execution, the property holding is altered to the detriment of
the judgment debtors as has happened herein and the decree
on which the execution was laid, is vacated and suit is
remanded ordinarily, the doctrine of restitution enacted u/s
144 r/w Order XLVII of the Code becomes invocable; thus, it
is open to the judgment debtor to seek restitution or
reinstatement on the ground of rescinding of the decree in
question on the basis of which the execution was levied; this
aspect has not been adverted to by the learned Judge of the
Executing Court.
In the above, circumstances, this Writ Petition succeeds
in part; the impugned order is set at naught; the subject
application having been favoured, the proceedings in
Execution No.138/2018 are restored to the Board so that the
petitioner can seek appropriate relief at the hands of the
Executing Court itself.
All contentions of the parties are kept open.
No costs.
Sd/-
JUDGE
cbc
