Karnataka High Court
Chandbasha S/O. Babusab Alias ... vs Ishwarappa on 16 February, 2022
Bench: B.M.Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
WRIT PETITION NO.100679/2022 (GM-CPC)
BETWEEN
CHANDBASHA S/O. BABUSAB ALIAS MAHABUBSAB
HABBANI, HUSAINSAB ALIAS ABUBAKHANAVAR
AGE. 47 YEARS OCC. AGRICULTURE
R/O. OPPOSITE TO BUS STAND
LAKKUND VILLAGE, TQ AND DIST. GADAG
...PETITIONER
(BY SRI. SADIQ N. GOODWALA, ADV.)
AND
ISHWARAPPA S/O. SHIVAPPA MATTI
AGE. 60 YEARS OCC. AGRICULTURE
R/O. LAKKUND VILLAGE,
TQ AND DIST. GADAG
...RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
A WRIT IN THE NATURE OF CERTIORARI QUASHING THE
IMPUGNED ORDER DATED 19.01.2022 PASSED BY
PRL.CIVIL JUDGE AND JMFC, GADAG IN EX.NO.73/2019
ON I.A.NO.4 VIDE ANNEXURE-G.
THIS WRIT PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
2
ORDER
The petitioner, who is the judgment debtor in
Execution No.73/2019 on the file of the Principal Civil
Judge and JMFC, Gadag (for short, "the executing
Court"), has impugned the executing Court's order dated
19.01.2022. The executing Court by this impugned
order has allowed the respondent - decree holder's
application (I.A. No.IV) under Section 47 of the Code of
Civil Procedure permitting the respondent to correct the
northern boundary of the subject property. The
executing Court has allowed the application as aforesaid
with liberty to the respondent to seek amendment of the
plaint and the decree in the original suit in O.S.
No.99/2011. The executing Court's reasoning is as
under:
"On considering the evidence of DHR and
JDR and documents produced by the DHR Ex.P.1
it discloses that, the agreement dated 03.01.2008
is executed defendant -JDR herein in favour of
plaintiff. On looking into the schedule mentioned
in the agreement of sale it discloses that, the
property bearing Sy No.386/1B total measuring
acres 4.3 guntas out of which 1/2 share towards
Southern side of the Sy No.386/1B was proposed
to be sold. So on looking into the recitals in Ex.P.1
agreement of sale it discloses that, if the
proposed sale of ½ portion of the Southern
property of Sy No.386/1B towards Northern side
of the property of Sy No.386/1B has to be
retained. Accordingly in the schedule also it is
mentioned towards Northern side as the property
retained in the same Survey Number that is
386/1B. So on looking into the facts and
circumstance of the case it clearly warrante that,
the plaintiff has typographical error has wrongly
mentioning the Northern side of the boundary as
Sy NO.379 instated of mention the remaining
property of Sy No.386/1B. In such circumstance if
the plaintiff /DHR is permitted to carryout the
amendment in the plaint as well as execution
petition and in the decree it does not cause in
justice to the JDR."
The executing Court has also observed that if the
respondent is permitted to correct the boundaries of the
subject property, the petitioner would not be put to any
hardship and would not offend the orders of this Court.
It must be stated that at this stage that the petitioner's
application for amendment as aforesaid was earlier
allowed by the executing Court, and when such order
was impugned before this Court in W.P.
No.100122/2021, this Court has quashed the said
order and restored the application for reconsideration.
Sri.Sadiq N. Goodwala, the learned counsel for the
petitioner, submits that the respondent's suit in O.S.
No.99/2011, a suit for specific performance, is
dismissed, and the appeal as against the judgment and
decree in the suit in R.A. No.80/2017 is allowed and the
suit decreed. The petitioner has preferred the second
appeal in R.S.A. No.100929/2019. The executing Court
could not have permitted correction when the appeal is
still pending. However, Sri.Sadiq N. Goodwala fairly
submits that there is no interim order of stay in this
second appeal.
Sri.Sadiq N. Goodwala next contends that the
executing Court could not have allowed the application
reserving the liberty to the respondent to amend the
plaint and the decree for correction of the boundary and
this liberty renders the filing of application a formality
and forecloses the petitioner's all defenses, including
the defense that the respondent has not shown cause
for the delay. This Court must opine that the impugned
order can neither foreclose the petitioner's defenses nor
render the filing of an application an empty formality.
Notwithstanding the reasoning by the executing Court,
the merits of the application that the respondent may
file in the disposed of suit for correction of the plaint
and the decree will have to be examined in the light of
the defence that the petitioner could set up.
Therefore, the writ petition stands disposed of with
such observation.
Sd/-
JUDGE
Rsh
