Karnataka High Court
K Pradeep vs Subbarama Shetty on 14 February, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.53871 OF 2018 (GM-CPC)
BETWEEN:
K.PRADEEP
S/O M. KRISHNAPPA
AGED 33 YEARS
H.NO.2938/E (2937/E)
M.C. ROAD, VIJAYANAGAR II STAGE
BANGALORE 40. ...PETITIONER
(BY SRI : ARVIND PATIL B, ADV.)
AND:
1. SUBBARAMA SHETTY
S/O LATE GOVINDAPPA
AGED ABOUT 78 YEARS
R/A VAJRAHALLI VILLAGE
BYANAPALAYA,
UTTARAHALLI HOBLI,
BANGALORE SOUTH TALUK
BANGALORE 560062.
2. SMT. SUSHEELAMMA
W/O LATE VENKARAMANNA SETTY
AGED ABOUT 68 YEARS
R/AT VAJRAHALLI VILLAGE
BYANAPALYA,
2
UTTARAHALLI HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE 560062.
3. SRI. GOVINDARAJU
S/O LATE VENKARAMANNA SETTY
AGED ABOUT 37 YEARS
R/AT VAJRAHALLI VILLAGE
BYANAPALYA,
UTTARAHALLI HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE 560062.
4. SMT. SHYAMALA
D/O LATE VENKARAMANNA SETTY
AGED ABOUT 40 YEARS
R/AT VAJRAHALLI VILLAGE
BYANAPALYA,
UTTARAHALLI HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE 560062.
5. SMT. YESHODA
D/O LATE VENKARAMANNA SETTY
AGED ABOUT 36 YEARS
R/AT VAJRAHALLI VILLAGE
BYANAPALYA,
UTTARAHALLI HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE 560062.
6. SMT. LAKSHMIDEVI
D/O LATE VENKARAMANNA SETTY
AGED ABOUT 38 YEARS
R/AT VAJRAHALLI VILLAGE
BYANAPALYA,
UTTARAHALLI HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE 560062.
3
7. N. VANARAJA
S/O NARAYANA SHETTY & LATE,
GOWRAMMA,
AGED ABOUT 49 YEARS
R/AT DODDA KAMMAHALLI LAYOUT,
BANNERGHATTA MAIN ROAD,
BANGALORE 560083.
8. D.N. KRISHNA MURTHY
S/O NARAYANA SHETTY & LATE
GOWRAMMA
AGED ABOUT 40 YEARS
R/AT DODDA KAMMAHALLI LAYOUT,
BANNERGHATTA MAIN ROAD,
BANGALORE-560083.
9. N. MANJUNATHA
S/O NARAYANA SHETTY & LATE
GOWRAMMA
AGED ABOUT 36 YEARS
R/AT DODDA KAMMAHALLI LAYOUT,
BANNERGHATTA MAIN ROAD,
BANGALORE 560083.
*10 . SMT. SUBAMMA
D/O LATE GOVINDAPPA
AGED ABOUT 68 YEARS
R/AT VAJRAHALLI VILLAGE
BYANAPALAYA,
UTTARAHALLI HOBLI,
BANGALORE SOUTH TALUK
BANGALORE-560062.
SINCE DEAD BY LRs
10(a) SMT.RAMADEVI B.R
D/O LATE SMT.SUBBAMMA
AGED ABOUT 46 YEARS
4
R/A NO.163, JANATHA COLONY,
VAJARAHALLI, THALAGHATTAPURA POST
BENGALURU-560 062.
10(b) SRI.RAVEENDRA B.R
S/O LATE SMT.SUBBAMMA
AGED 43 YEARS
R/A NO.163, JANATHA COLONY,
VAJARAHALLI, THALAGHATTAPURA POST
BENGALURU-560 062.
10(c) SRI RAMACHANDRA B.R
S/O LATE SMT.SUBBAMMA
AGED 40 YEARS
R/A NO.163, JANATHA COLONY,
VAJARAHALLI, THALAGHATTAPURA POST
BENGALURU-560 062.
*AMENDED CARRIED OUT VIDE ORDER DATED 09.11.2021
11 . SMT. JAYALAKSHMI @ JAYAMMA
D/O LATE GOVINDAPPA
AGED ABOUT 65 YEARS
R/AT VAJRAHALLI VILLAGE,
BYANAPALAYA, UTTARAHALLI HOBLI,
BANGALORE SOUTH TALUK
BANGALORE 560062.
12 . SMT. LAKSHMAMMA
D/O LATE GOVINDAPPA
AGED ABOUT 60 YEARS
R/AT VAJRAHALLI VILLAGE
BYANAPALAYA, UTTARAHALLI HOBLI,
BANGALORE SOUTH TALUK
BANGALORE 560062.
13. SMT.VENKATAMMA
D/O LATE VENKATADASAPPA
5
@VENKATANARASAPPA
MAJOR IN AGE
R/AT BIDADI, RAMANAGAR TALUK
RAMANAGAR-571 511
14. SMT.RATHNAMMA
D/O LATE LAKSHMAMMA
` MAJOR IN AGE
R/AT NO.28,
KETHAGANNAHALLI MAIN ROAD
HOSA BEEDHI, BIDADI
RAMANAGAR(T)
15. SMT.MANJULA
W/O LATE MUKUNDA
DAUGHTER-IN-LAW OF
LAKSHMAMMA
MAJOR IN AGE
R/AT NO.29/1, 1ST CROSS
AZAD NAGAR, MYSORE ROAD
BANGALORE
16. SMT.LAKSHMIDEVI
W/O LATE SRINIVASA
D/O SANJEEVA SHETTY
AGED ABOUT 47 YEARS
17. SRI.RAGHU
S/O LATE SANJEEVA SHETTY
AGED ABOUT 43 YEARS
18. SMT.MANJUNATH
S/O LATE SANJEEVA SHETTY
AGED ABOUT 37 YEARS
19. SMT.BHAGYAMMA
D/O LATE SANJEEVA SHETTY
AGED ABOUT 35 YEARS
6
20. SMT.SHANTHA
W/O NAGARAJ
D/O LATE SANJEEVA SHETTY
AGED ABOUT 32 YEARS
21. SMT.SUJATHA
W/O GOVINDA RAM,
D/O LATE SANJEEVA SHETTY,
AGED ABOUT 32 YEARS,
22. SMT.R.ASHA
W/O LATE RADHAKRISHNA
MAJOR IN AGE
23. SMT.B.R.LAKSHMIDEVI
D/O LATE RADHAKRISHNA
MAJOR IN AGE
24. SRI NITHISH KUMAR
S/O LATE RADHAKRISHNA
MAJOR IN AGE
RESPONDENT NO.16 TO 24 ARE
RESIDING A BIDADI,
RAMANAGAR TALUK
RAMANAGAR DIST.
25. SMT.PRIYADARSHINI
W/O M.KRISHNAPPA
AGED ABOUT 55 YEARS
R/AT NO.2938/E(2937/E)
SERVICE, VIJAYANAGAR II STAGE
BANGALORE-40.
26. SMT.JAYAMMA
W/O LATE KRISHNAPPA
AGED ABOUT 70 YEARS
R/AT NO.111, 9TH K MAIN
7
VIJAYANAGAR
BANGALORE-560 040.
...RESPONDENTS
(BY SRI : K H THIMMAIAH, ADV., FOR R1 TO R9, R11 &
R9(A) TO (C), SRI H.S.PRASHANTH, ADV., R12,
SRI B.R.RAVINDRA, PARTY-IN-PERSON,R10(B)
VIDE ORDER DATED 07.02.2020, NOTICE TO R13,R14,
R17 & R26 DISPENSED WITH, R15, R16, R18, R19, R20,
R21 TO R25 SERVED, R10(b) IS PERMITTED TO COME ON
RECORD AS LR OF DECEASED R10 VIDE ORDER DATED
09.11.2021)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE RECORDS IN F.D.P.NO.45/2013 & SET SIDE THE
PROCEDINGS PRODUCED AS PER ANNEXURE-D AFTER THE
DATE 27.4.2018 AND PARTICULARLY, THE PROCEEDINGS
DTD 20.6.2018 AND 10.8.2018 AND ALSO THE
CONSEQUENTIAL FINAL DECREE PROCEEDINGS THAT HAS
BEEN DRAWN.
THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner aggrieved by the order dated
27.04.2018 and particularly, the proceedings dated
20.06.2018 and 10.08.2018 and consequential final
decree proceedings that has been drawn in
F.D.P.No.45/2013 by the XXII Additional City Civil and
Sessions Judge at Bengaluru has filed this writ
petition.
2. Brief facts leading to filing of this writ petition
are as under:
Respondent No.26 filed a suit in
O.S.No.4694/1986 for the relief of partition and
separate possession. The said suit came to be
dismissed in the first instance and the
plaintiff/respondent No.26 aggrieved by the judgment
and decree passed by the Trial Court, preferred an
appeal in RFA No.488/2005. This Court by judgment
and decree dated 03.12.2012 had allowed the appeal
while recording a compromise inter se between the
family members. Since RFA was disposed of, the
present petitioner being respondent No.11 had
preferred the Special Leave Petition before the Hon'ble
Apex Court in SLP.No.847/2014, respondent No.26-
plaintiff had initiated the final decree proceedings in
FDP No.45/2013. Since there was no interim order
passed by the Hon'ble Apex Court, the matter was
proceeded in the final decree proceedings and a
Commissioner's Report was secured and thereafter,
there was a partition demarcated as directed by this
Court in RFA.No.488/2005. The final decree
proceedings was closed on 30.06.2015 and thereafter,
subsequent proceedings as a result of which final
decree proceedings was drawn up and also registered.
In the SLP since the parties have entered into
compromise, the Hon'ble Apex Court had disposed of
the SLP vide judgment dated 12.04.2017.
3. After disposal of SLP, respondent No.26-
Plaintiff filed an application under Section 151 of C.P.C
along with an affidavit to enable her to register the
final decree. The Trial Court vide order dated
14.07.2015, issued an exemption letter to the
respondent No.26 as prayed for by her to the Sub-
Registrar to register the final decree in her favour. The
advocate for the respondent No.26 filed a memo along
with Non Judicial Court fee of Rs.1,000/- dated
06.07.2015 for drawing up of a final decree towards
the share of respondent No.26. Again the advocate for
respondent No.26, filed an application under Section
151 of C.P.C. on 20.07.2015 to pass orders so as to
enable the respondent No.26 to rectify the
typographical error along with affidavit. From the
perusal of the order sheet, it discloses that trail Court
allowed the said application and amendment has been
carried out as per the order dated 20.07.2015. On
22.7.2015, the learned advocate for the respondent
No.26 has filed memo along with along with NJCF of
Rs.1,000/- for drawing up of a final decree towards
the share of respondent No.26. The legal
representatives of respondent No.9 filed an application
on 27.08.2015 to direct the office to issue exemption
letter to the Sub-Registrar for registration. The Trial
Court has issued an exemption letter to the sub-
registrar concerned for registration of final decree
proceedings on behalf of respondent No.9c(a) and
9(c)(b) before the Trial Court. On 04.09.2015, the
aforesaid respondents filed a memo along with non-
judicial Court fee of Rs.1,000/- for drawing up of a
final decree proceedings and they received final
decree engrossed document sheet of Rs.1,000/-
consisting of 11 sheets along with the sketch.
4. The respondent Nos.1 to 7 before the FDP
Court filed an application to direct the office to issue
exemption to the Sub-Registrar for registration. The
Trial Court issued the exemption letter to the Sub-
Registrar for registration in respect of respondent
Nos.1 to 7 vide order dated 23.09.2015 and adjourned
the matter to 25.09.2015. On 25.09.2015, amended
plaint was furnished in Court. Office was directed to
rectify the decree already drawn, by bringing the LR's
of deceased respondent No.3 as per I.A., on record of
the decree. The advocate for respondent Nos.1 to 7
before the trial Court filed a memo along with a Non-
Judicial Court fee of Rs.1000/- for drawing up a final
decree towards the share of respondent Nos.1 to 7 on
07.12.2015. An application was filed by legal
representatives of respondent No.3 before the trial
Court to bring them on record. The trial Court by
order dated 23.11.2015 allowed the application to
bring legal representatives of respondent No.3 and
R3(a) to 3(e) on record. On 08.03.2018, a memo was
filed by the learned counsel for LR's of respondent No.
3(a to e), 5 and 6 for separate share on non-judicial
stamp paper. The trial Court held that for non-judicial
boundaries are not specified in the memo and
adjourned the matter to 14.03.2018 to verify about
the boundaries. On 20.06.2018, Both the parties filed
a joint memo of description of shares of each
claimants. The trial Court accepted the joint memo
and directed the claimants to bear the expenses for
registration of final decree proceedings. The
petitioner, aggrieved by the order dated 27.04.2018,
20.06.2018, 10.08.2018 has filed this writ petition.
5. Heard the learned counsel for the petitioner
and learned counsel appearing for respondent Nos.1
to 9 and also party-in-person.
6. Learned counsel for the petitioner submits
that the final decree proceedings was closed on
30.06.2015. The respondents without serving a copy
of application filed under Section 151 of Cr.P.C. for
drawing up of a final decree proceedings, have filed an
application before the trial Court. He further submits
that when once the final decree proceedings are
closed, the trial Court has no jurisdiction to entertain
any application filed by the parties. In support of his
case, he places reliance on the decision of the Co-
ordinate Bench of this Court in W.P.Nos.44691-
44692/2017 which was disposed of on 12.12.2017. He
submits that the trial Court becomes functus officio
and hence applications entertained by the trial Court
is without jurisdiction. Hence, on these grounds he
prays to allow the writ petition.
7. Per contra, learned counsel for respondent
Nos.1 to 9 submits that the parties have entered into
compromise before the Supreme Court. As per the
compromise petition filed before the Supreme Court,
the property of the petitioner was not disturbed,
hence the petitioner has no right to challenge the
orders passed by the trial Court. He further submits
that this Court in RFA No.488/2005 has not accepted
the submissions made by the learned counsel
appearing for the petitioner. He also further submits
that the Supreme Court has set aside the judgment
passed in RFA.No.488/2005. He further submits that
the writ petition is not maintainable as the petitioner
has got an alternative remedy available under Section
97 of C.P.C. Hence, on these grounds, he prays for
dismissal of the writ petition. He further submits that
final decree proceedings were not closed. Hence, on
these grounds, he prays to dismiss the writ petition.
8. The power of attorney holder of respondent
No.10(B) submits that respondent No.7 is not getting
the fruits of the decree passed in the said suit. He
further submits that he would adopt the arguments
advanced by the learned counsel for the respondent
Nos.1 to 9 and prays to dismiss the writ petition.
9. Heard and perused the records and
considered the submissions of the learned counsel for
the parties.
10. It is not in dispute that the respondent
No.26 filed a suit in O.S.No.4694/1986 seeking for a
relief of partition and separate possession. The said
suit came to be dismissed by the trial Court. The
respondent No.26 being aggrieved by the judgment
and decree passed by the trial Court, preferred an
appeal in RFA.No.488/2005 before this Court. This
Court vide judgment and decree dated 03.12.2012,
allowed the appeal and drew the preliminary decree.
Petitioner being aggrieved by the judgment and
decree passed in the aforesaid appeal, preferred an
appeal before the Hon'ble Apex Court in SLP
No.847/2014. During the pendency of SLP, the
respondent No.26 has filed final decree proceedings as
there was no interim order in the said appeal. The trial
Court went on with the final decree proceedings. After
drawing up of a final decree, the trial Court has closed
final decree proceedings vide order dated 30.06.2015.
After closure of final decree proceedings, the parties
have entered into compromise before the Hon'ble
Apex Court and presented the memo for compromise
on 12.04.2017 and thereafter the Hon'ble Apex Court
disposed of said SLP vide order dated 12.04.2017. On
14.07.2015, the respondent No.26 has filed a memo
along with an application to enable her to register the
final decree. The other respondents have also filed
similar applications for drawing up of final decree
proceedings. Before passing any order, the said
applications were not served on the learned counsel
for the petitioner. The trial Court went on passing the
orders without considering that the final decree
proceedings have already been closed. The impugned
orders passed by he trial Court is in violation of
principles of natural justice. Once the final decree
proceedings are closed, the trial court has no
jurisdiction to entertain the applications and the trial
Court becomes functus officio. The impugned orders
passed by the trial Court are without jurisdiction.
Hence, it is the duty of the Court to set right the same
in order to maintain the judicial discipline in the legal
system. The trial Court without considering the said
aspect, has proceeded to pass the impugned orders.
11. Further, the Co-ordinate Bench of this
Court in W.P.Nos.44691-44692/2017 decided on
12.12.2017 held "That once the decree passed by trial
Court has reached finality, the learned Judge, who
passed the judgment and decree becomes functus
officio and he cannot alter or direct any authorities to
implement the decree. I am of the opinion to consider
the definition of functus officio. After considering the
definition of functus officio as per the Black's Law
Dictionary, it is seen that once a decree is made, the
learned judge becomes a functus officio and any
orders passed by the trial Court are without
jurisdiction." Considering the law laid down by this
Hon'ble Court in the aforesaid decision, the trial Court
has committed an error in entertaining the
applications filed by the respondents after closure of
final decree proceedings.
12. Hence, in view of the above discussions,
the writ petition is allowed and the impugned orders
passed by the trial court are set aside.
The parties are at liberty to file fresh Final
Decree Proceedings, if so advised.
Sd/-
JUDGE
rv
