Karnataka High Court
Shankarappa M V vs Sri.K.Narayanappa on 9 November, 2021
Bench: B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.7504/2021(GM-CPC)
BETWEEN :
SRI.M.V.SHANKARAPPA,
S/O LATE VENKATAMUNIYAPPA,
AGED ABOUT 65 YEARS,
OCCN: AGRICULTURIST/CONTRACT WORK,
R/A NO.9, 5TH ,
MODEL HOUSE STREET, T R NAGAR,
BANGALORE - 560 028.
... PETITIONER
(BY SRI.RAVINDRA D.K., ADVOCATE)
AND :
1. SRI.K.NARAYANAPPA,
S/O LATE CHANNAPPA,
AGED 67 YEARS,
OCCN: AGRICULTURE,
R/O MALLEKUPPA VILLAGE,
NANGALI POST - 563 132,
BYRAKUR HOBLI,
MULBAGAL TALUK.
2. SMT. VASANTHAMMA,
W/O LATE HANUMAPPA,
AGED ABOUT 62 YEARS,
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3. SRI MANI MOHAN,
S/O LATE HANUMAPPA,
AGED ABOUT 37 YEARS,
4. SRI. M V VENKATARAMAIAH,
S/O VENKATAMUNIYAPPA,
AGED ABOUT 55 YEARS,
5. SRI. MUNIRATHNAM,
S/O VENKATAMUNIYAPPA,
AGED ABOUT 52 YEARS,
6. SRI. SADASHIVA,
S/O VENKATAMUNIYAPPA,
AGED ABOUT 46 YEARS,
RESPONDENT 2 TO 5
R/O MALLEKUPPA VILLAGE,
NANGALI POST - 563 132,
BYRAKUR HOBLI,
MULBAGAL TALUK.
... RESPONDENTS
(BY SRI.G.PAPI REDDY, ADVOCATE FOR R4;
NOTICE DISPENSED WITH TO R3, R5 AND R6;
NOTICE HELD SUFFICIENT TO R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER VIDE ANNEXURE - E, PASSED BY
THE LEANRED ADDL. CIVIL JUDGE AND JMFC AT
MULBAGAL IN EX.PET.NO.13/2017 ON I.A.NO.2 UNDER
SECTION 10 OF CPC DATED 04.03.2021 AND STAY THE
FURTHER PROCEEDINGS IN EX.PET.NO.13/2017 TILL
DISPOSAL OF MISC. PET. NO.11/2019 PENDING ON THE
FILE OF ADDL. CIVIL JDUGE AND JMFC, MULBAGAL, BY
ALLOW THIS W.P. 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
The petitioner, who is one of the judgment debtors
(JDR No.3) in Execution Petition No.13/2017 on the file
of the Additional Civil Judge and JMFC, Mulbagal (for
short, 'the executing Court'), has impugned the order
dated 04.03.2021. The executing Court by this
impugned order has rejected the petitioner's application
under Section 10 of Code of Civil Procedure (for sort
'CPC') observing that the petitioner could not have
invoked Section 10 of CPC as the said provision could
be availed only when a prior suit is filed.
2. The learned Counsel for the petitioner submits
that contesting first respondent - the decree holder has
filed a suit in O.S. No.95/2008 for specific performance
against petitioner and other respondents. The civil
Court has partly decreed the suit refusing specific
performance, but in an appeal filed by the first
respondent, the suit for specific performance is restored
for reconsideration. The petitioner is not served with
notice after restoration of the suit. The petitioner is a
resident of Bengaluru, and he was served with the
notice at the first instance before the civil Court, and
even in the execution case, only at the address in
Bengaluru.
3. The learned Counsel for the petitioner further
submits that nevertheless, after the restoration of the
suit by the appellate Court, the first respondent has
filed an application for permission to take out notice to
the petitioner through substituted service by way of
paper publication. The first respondent is permitted to
take out such notice in a daily which has a limited
circulation in Kolar district. The suit in O.S.
No.95/2008 is disposed of by the civil Court in the year
2016, and this time by granting specific performance.
4. The learned Counsel for the petitioner
emphasizes that the petitioner was not aware of the
date of resumption of the civil suit. Only when he was
served with the notice in the execution proceedings at
his Bengaluru address, he learnt about the subsequent
decree and he has filed an application for recalling of
the exparte decree in the Misc. Petition No.11/2019.
The first respondent has been served with notice of
petition in Misc. Petition No.11/2019 and he has also
completed his pleadings. The proceeding is listed for
evidence on the petitioner's application and as such, the
petitioner has not been able to pursue his application
for stay of the decree.
5. The learned Counsel for the petitioner urges
that the executing Court in the circumstances should
have exercised its jurisdiction to stay the execution of
the proceedings to facilitate a complete and effective
adjudication before the decree is put into execution, and
the executing Court should not have taken a pedantic
approach in disposing of the petitioner's application
only because a wrong provision has been included.
6. This Court has granted interim order staying
further proceedings and though the first respondent -
decree holder is served, has remained unrepresented.
The circumstances emphasized by the learned Counsel
for the petitioner are not contested. This Court, in the
light of these circumstances, is persuaded to dispose of
the writ petition by continuing the interim order granted
for a limited period with a direction to the civil Court to
dispose of the petitioner's application in Misc. Petition
No.11/2019 in a time bound manner for a complete and
effective adjudication. Therefore, the following order:
ORDER
[a] The writ petition stands disposed of staying the
further proceedings in Execution Petition No.13/2017
before the executing Court for a period of five [5] months
from today.
[b] The Additional Civil Judge and JMFC, Mulbagal
(the civil Court) is called upon to dispose of the
proceedings in Misc. Petition No.11/2019 within a
period of four (4) months from the date of receipt of
certified copy of this order.
[c] The petitioner shall file certified copy of this order
in Misc. Petition No.11/2019, and seek an appropriate
advancement for such expeditious disposal of the
petition.
Sd/-
JUDGE
CS
