Executive Engineer vs Pandurangarao S/O Prahladrao ...
2021 Latest Caselaw 60 Kant

         IN THE HIGH COURT OF KARNATAKA
                 DHARWAD BENCH

     DATED THIS THE 4 T H DAY OF JANUARY, 2021

                            BEFORE

 THE HON'BLE MR.JUSTICE N.S. SANJAY GOWDA

        WRIT PETITION NO.148874/2020 (GM-CPC)

Between:

Executive Engineer,
Gulbarga Electricity Supply Company Ltd.,
O&M Sub Division, Koppal-583231.
                                                    ..... Petitioner
(By Shri Anoop G. Deshpande, Advocate)

And:

1.     Pandurangarao S/o.Prahladrao Kulkarni,
       Age 48 years, Occ: Agriculture,
       Hire-Vankalakunta Village,
       Dist. & Tq.: Koppal-583237.

2.     Assistant Commissioner and LAO,
       Koppal-583231.
                                                 ..... Respondents

      This writ petition is filed under Articles 226 and 227 of the
Constitution of India, praying to issue a writ of certiorari or any
other writ or order by quashing the order dated 26.02.2020
passed on maintainability of the Execution Petition passed by the
Senior Civil Judge and Addl. MACT, Yelagurga in Ex.Case
No.41/2017 as per Annexrue-J and pass consequential order of
dismissing the Ex.Case No.41/2017 Senior Civil Judge and Addl.
MACT, Yelaburga as not maintainable.
                                       :2:



     This petition coming on for orders, this day, the court
made the following:

                                    ORDER

1. On 16.06.2005, in a reference under Section

18 of the Land Acq uisition Act, the reference Court

enhanced the compensation to a sum of Rs.61,400/- per

acre ap art from granting solatium and additional market

value. This order passed in reference was challenged by

way of an appeal in MFA No.8242/2005 and this Court

by order dated 01.12.2006, dismissed the appeal.

2. During the pend ency of the MFA

NO.8242/2005, the land loser had filed an Execution

Petition in Ex.Case No.410/2005, but the same was

dismissed for non-prosecution and subsequently, the

land loser filed one more Execution Petition on

04.07.2017. However, while filing the said Execution

petition instead of arraying the Executive Engineer,

KEB, O&M Division, Kopp al, he had arrayed the

Executive Engineer, Minor Irrig ation Dep artment,

Dharwad as the second judgment debtor.

3. The land loser thereafter mad e an application

seeking for substitution and this application for

substitution was granted and the Executive Engineer,

KEB, O&M Division, Kopp al was substituted in place of

the Executive Engineer, Minor Irrig ation Dep artment,

Dharwad.

4. The Executive Engineer, KEB, O&M Division,

Koppal i.e., the petitioner did not choose to challenge

the ord er by which he was substituted in the place of

the Executive Engineer, Minor Irrig ation Dep artment,

Dharwad. He however filed objections q uestioning the

maintainab ility of the Execution Petition. It was his case

that the p etition had b een filed beyond 12 years and

was hence time barred.

5. The Trial Court after considering the said

contention came to the conclusion that the ord er of

reference was carried in appeal in MFA No.8242/2005

and since the same was d ismissed on 01.12.2006, the

Execution Petition filed on 04.07.2017 was within the

period of limitation.

6. Learned counsel for the p etitioner contend ed

that the Executing Court had committed a serious error

in coming to conclusion that the Execution Petition was

filed within the period of limitation. He contended that

since the Executive Eng ineer, KEB, O&M Division,

Koppal was substituted only on 31.10.2017, in law, it

will have to be construed that the Execution Petition

was filed only on 31.10.2017 and since the order of

reference was p assed on 16.06.2005, the same was

beyond 12 years and hence time barred .

7. It is not in disp ute that the execution petition

was filed within the period of limitation on 04.07.2017.

However, the Executive Eng ineer, Minor Irrigation

Dep artment, Dharwad was arrayed instead of the

Executive Engineer, KEB, O&M Division, Kopp al and this

error was permitted to be rectified by the Executing

Court by passing an ord er on 31.10.2017. In my view,

since the execution petition was filed within the period

of limitation, the Executive Eng ineer, KEB, O&M

Division, Kopp al cannot contend that the limitation

would begun from the date on which the Executive

Eng ineer, KEB, O&M Division, Koppal was substituted. It

is to be stated that the Executive Eng ineer, KEB, O&M

Division, Koppal did not challenge the ord er by which he

was substituted in the place of the Executive Engineer,

Minor Irrigation Dep artment, Dharwad.

8. The consequence of accep tance of the ord er

of substitution is that the Execution p etition filed on

04.07.2017 would be within the p eriod of limitation.

9. It is to be noticed here that the land loser

had not sought to implead the Executive Engineer, KEB,

O&M Division, Koppal for the first time and only

because the execution p etition was instituted ag ainst a

wrong person, in my view, it cannot b e held that the

petition was filed beyond the period of limitation. The

Executing Court is thus justified in hold ing that the

Execution p etition was maintainable, by the impugned

ord er. I find no infirmity in the impugned order and the

writ p etition is therefore dismissed.

SD/-

JUDGE Vnp*