S.V.Sudarshan S/O Vasudeva Setty vs S.V.Kubera Gupta S/O Vasudeva ...
2021 Latest Caselaw 215 Kant

         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

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

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

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

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