Karnataka High Court

Shanthamma vs Shivamma on 12 January, 2021

Author: S R.Krishna Bysrkkj

                              1




     IN THE HIGH COURT OF KARNATAKA, BENGALURU
       DATED THIS THE 12TH DAY OF JANUARY, 2021
                        BEFORE
     THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
       WRIT PETITION NO. 21791 OF 2015 (GM-CPC)
BETWEEN:

1.     SHANTHAMMA
       W/O LATE RAJE GOWDA,
       AGED ABOUT 52 YEARS.
2.     MADHUSUDHAN G.R.
       S/O LATE RAJE GOWDA,
       AGED ABOUT 29 YEARS.
3.     MANOJ KUMAR G.R.
       S/O LATE RAJE GOWDA,
       AGED ABOUT 27 YEARS,
      ALL ARE R/AT GOWDARAHALLI VILLAGE
      HIRISAVE HOBLI, CHANNARAYAPATNA TALUK
      HASSAN DISTRICT - 573 116.
                                          ...PETITIONERS
(BY SRI.K.R.LINGARAJU, ADV.)

AND:

1.     SHIVAMMA
       W/O NANJAPPA,
       AGED ABOUT 44 YEARS,
2.     LOKESH
       S/O NANJAPPA,
       AGED ABOUT 21 YEARS.
3.     DILEEPA
       S/O NANJAPPA,
       AGED ABOUT 18 YEARS.
4.     NANJAPPA
       S/O LATE HONNE GOWDA,
       AGED ABOUT 51 YEARS,
                                 2




      R/O GOWDARAHALLY VILLAGE,
      HIRISAVE HOBLI,HASSAN DISTRIT.
                                               ...RESPONDENTS
(BY SRI. S. RAMAMURTHY, ADV. FOR R-1 TO R-3
    R-4 SERVED- UNREPRESENTED)


      THIS W.P. IS   FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED IN EX NO. 7/2012 DT: 17.06.2014 BY THE SENIOR CIVIL
JUDGE & JMFC AT CHANNARAYAPATNA VIDE ANNEXURE-A AND
ETC.S

    THIS W.P. COMING ON FOR PRELIMINARY HEARING IN 'B'
GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-


                            ORDER

This petition by the legal representatives of the

judgment debtor No.2 in Ex.7/2012 is directed against the

impugned order dated 17.06.2014 passed by the Senior Civil

Judge and J.M.F.C., Channarayapatna(for short 'the trial

court'), whereby the trial Court directed issuance of sale notice

in respect of the properties of Nanjappa-respondent No.4 to

the extent of his share to recover the amount due to the

decree holders-respondents 1 to 3.

2. Heard the learned counsel for petitioners and learned

counsel for the respondents and perused the material on

record.

3. The material on record indicates that it is not in

dispute that respondent Nos.1 to 3 are wife and children of

respondent No.4-Nanjappa. Respondent Nos.1 to 3 had

instituted a suit in O.S.NO.72/2002 for maintenance and for

partition, separate possession of their 1/3rd share in the suit

schedule properties and for other reliefs. By judgment and

decree dated 03.03.2009, the trial Court decreed the suit in

favour of respondent Nos.1 to 3 in part and thereby holding

that they are entitled to 4/27th share each in item Nos.1 to 4, 7

and 8 of the suit schedule properties. The trial Court also

decreed that respondent No.1 was entitled to maintenance in

a sum of Rs.1,000/- per month while respondent Nos.2 and 3-

children are entitled to Rs.500/- per month and created a

charge over item No.4 of the suit schedule property.

4. Aggrieved by the said judgment and decree,

R.A.No.59/2009 was preferred by Subbamma, mother of

Nanjappa and Rajegowda, who is none other than the

husband of petitioner No.1 and father of petitioner Nos.2 and

3. By judgment and decree dated 08.09.2011, the appellate

Court allowed the appeal in part and modified the judgment

and decree passed by the trial Court. According to the

appellate Court, respondent Nos.1 to 3 were declared to be

entitled to maintenance only from Nanjappa-respondent No.4

and that they were not entitled to any maintenance from the

petitioner and his mother. The operative portion of the

judgment and decree passed by the first appellate Court reads

as under:

"ORDER

Appeal filed under Order 41 Rule 1 read with Section 96 of CPC is Partly allowed with cost.

The Judgment and decree dated 30.03.2009 passed in O.S.No.72/2002 by the Court of Senior Civil Judge, Channarayapatna is modified.

Consequently, it is held that the Plaintiffs are entitled for maintenance amount as ordered by the Court below from the Defendant No.1 and that there shall be a charge over the share of Defendant No.1 in item Nos.1 to 4, 7 and 8 of the schedule properties towards maintenance amount payable to the Plaintiffs.

It is further held that the Plaintiffs are not entitled to claim maintenance from the Defendants No.2 and 3."

5. Since respondent No.4-Nanjappa did not comply with

the judgment and decree passed in R.A.No.59/2009,

respondent Nos.1 to 3 instituted execution proceedings in

Ex.No.7/2012 before the trial Court to enforce the said

judgment and decree. In the execution proceedings, Nanjappa

was arrayed as Judgment Debtor No.1 while Subbamma was

Judgment Debtor No.3. It is relevant to state that during the

pendency of the execution proceedings, the aforesaid

Rajegowda, who was arrayed as Judgment Debtor 2 in the

execution proceedings had expired leaving behind his wife

and children, petitioners herein as his heirs and legal

representatives.

6. By the impugned order, the executing Court directed

issuance of sale notice in respect of properties only to the

extent of the 1/3rd share of respondent No.4-Nanjappa. While

passing the impugned order, the trial Court also noticed the

fact that the aforesaid Judgment Debtor 2 - Rajegowda was

also entitled to 1/3rd share in the suit schedule properties

while the remaining 1/3rd belonged to their mother

Subbamma. After considering and appreciating the entire

material on record and adequately safe guarding the 13rd

shares each of Rajegowda as well as Subbamma, the

executing Court passed the impugned order as under:

"In view of the said fact there is no dispute the JDR No.1(Nanjappa) is liable to pay the due amount, hence, there is no impediment to issue sale notice in respect of the property of the JDR No.1(Nanjappa) to an extent of his share as observed in R.A.No.59/09. The order of issue of sale notice shall not affect the share of JDR No.2(Rajegowda and JDR No.3(Subbamma). It was also the submission of the learned counsel for the DHR there is no necessity to demarcate the properties of the 1st JDR(Nanjappa) and his portion of property can be subjected to sale. In this regard, it is necessary to mention it is for the DHR to identify the property of the 1st JDR(Nanjappa) to an extent of his share and against which a sale notice is ordered.

Issue sale notice in respect of the properties of the 1st JDR(Nanjappa)to an extent of his share to recover the due amount as per process memo to be paid returnable by 07.08.2014."

7. A perusal of the impugned order will clearly indicate

that the impugned order is restricted to issuance of sale notice

only in respect of the 1/3rd share of respondent No.4-Nanjappa

and the rights of the Petitioners who are the legal

representatives of Rajegowda have been safe guarded by the

trial Court in the course of the impugned order. In other words,

no prejudice can be said to have been caused to the

petitioners by virtue of the impugned order particularly when

their rights have been adequately safeguarded by the

executing court in the impugned order which has not

occasioned failure of justice warranting interference by this

court in the exercise of its supervisory jurisdiction under Article