Shiddanagouda S/O Holappagouda ... vs Rudrappa S/O Kalappa ...
2022 Latest Caselaw 2884 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 21st DAY OF FEBRUARY 2022

                        BEFORE

    THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD

       Writ Petition No.110803/2017 (GM-CPC)

Between

Shiddanagouda,
S/o Holappagouda Patil,
Age: 45 years, Occ: Agriculture,
R/o Mugali, Tq: Shiggaon,
Dist: Haveri.                                 ...Petitioner

(By Sri. N.P.Vivekmehta, Advocate)

And

Rudrappa, S/o Kalappa
Bhadrashetty, Age: 74 years,
R/o Mugali, Tq: Shiggaon,
Dist: Haveri.                            ..Respondent

(By Sri. Harshwardhan M.Patil, Advocate for
          Sri. M.H.Patil, Advocate)

      This Writ Petition is filed under Articles 226 &
227 of the Constitution of India praying to quash the
order of Additional Senior civil Judge & JMFC, Haveri,
dated 23.09.2017 passed on I.A. No.3 in Ex.No.24/2000
vide Annexure-D; call for records in Ex.No.24/2000 on
the file of the Additional Senior civil Judge and JMFC,
Haveri.
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     This Writ Petition coming on for Orders, this day,
the Court made the following:


                        ORDER

The petitioner's application [I.A. No.3] in Execution

No.24/2000 on the file Additional Senior Civil Judge &

JMFC, Haveri (for short, 'the executing Court') under

Order XXI Rule 29 of the Code of Civil Procedure, 1908

is rejected by the impugned order. In this application,

the petitioner has sought for stay of the execution

proceedings essentially on the ground that his suit in

O.S. No.38/2010 for declaration that the ex parte

judgment in O.S. No.63/1995, which is sought to be

enforced in the present execution proceedings, is not

binding on him.

2. The executing Court has considered the

merits of the petitioner's application in light of the

provisions of Order XXI Rule 29 of the Code of Civil

Procedure, 1908. The executing Court, after referring to

a particular author on the Law of Execution, has opined

that the provisions of Order XXI Rule 29 of CPC are

intended to enable the judgment debtor to adjust claims

and to avoid multiplicity of proceedings but the

petitioner has not made out any such circumstance for

grant of stay as contemplated under Order XXI Rule 29

of CPC.

3. Sri. N.P.Vivekmehta, the learned counsel for

the petitioner, submits that the petitioner is constrained

to file the suit in O.S.No.38/2010 for declaration that

the ex parte judgment for specific performance in O.S.

No.63/1995 is null and not binding on him because a

sale agreement purportedly executed in the year 1985 is

relied upon to being in this suit for specific performance

in the year 1995 suppressing material circumstances.

This suit is decreed ex parte in the year 1997 and the

execution proceeding is commenced in the year 2000.

The petitioner can only demonstrate that the suit was

barred by limitation and also that the respondent-

decree holder would not be entitled for specific

performance. Therefore, there must be stay of the

execution proceedings.

4. However, this Court must opine that

whether the petitioner is entitled for any relief or not

must necessarily be examined by the Court before

whom the suit is filed for declaration that the judgment

and decree is null and void as it would require prima

facie appreciation of the circumstances relied upon by

the petitioner and this cannot be offered as a reason for

stay in the execution proceedings under Order XXI Rule

29 of CPC. Therefore, the petition stands disposed of

with liberty to the petitioner, subject to all just

exceptions, to file necessary application in the pending

suit commenced by him.

Sd/-

JUDGE Kms