Sri. Kashim S/O Hussain Kurani vs Sri. Ningappa S/O. Mallappa ...
2022 Latest Caselaw 40 Kant

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          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH
      DATED THIS THE 3RD DAY OF JANUARY 2022
                        BEFORE
    THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD

       WRIT PETITION NO.104926/2018 (GM-CPC)
Between

1. Kashim,
   S/o Hussain Kurani,
   Age: 60 years, Occ: Agriculture,
   R/o Daddi Naganur,
   (Majati Centre),
   Tq: Hukkeri, Dist: Belagavi.

2. Gulab,
   S/o Hussain Kurani,
   Age: 56 years, Occ: Agriculture,
   R/o Daddi Naganur,
   (Majati Centre),
   Tq: Hukkeri, Dist: Belagavi.

3. Sayyed,
   S/o Hussain Kurani,
   Age: 52 years, Occ: Agriculture,
   R/o Daddi Naganur,
   (Majati Centre),
   Tq: Hukkeri, Dist: Belagavi.

4. Rasul,
   S/o Hussain Kurani,
   Age: 49 years, Occ: Agriculture,
   R/o Daddi Naganur,
   (Majati Centre),
   Tq: Hukkeri, Dist: Belagavi.
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5. Akbar, S/o Hussain Kurani,
   Age: 49 years, Occ: Agriculture,
   R/o Daddi Naganur, (Majati Centre),
   Tq: Hukkeri, Dist: Belagavi.             ...Petitioners

(By Sri. M.R.Yaragamblimath, Advocate for Sri. Ramesh
         I.Zirali, Advocate)

And

Ningappa, S/o Mallappa Nashipudi,
Age: 63 years, Occ: Agriculture,
R/o: Hitni, Tq: Gadhinglaj,
Dist: Kolhapur, State: Maharashtra,
Now at Daddi Naganur (Majati Centre)
Tal: Hukkeri, Dist: Belagavi-591309.       ...Respondent

(By Sri. Vishwanath V.Badiger, Advocate)

      This Writ Petition   is filed under Articles 226 &
227 of the Constitution of India praying to quash the
impugned order dated 20.03.2018 passed in E.P.
No.21/2012, by the Hon'ble Principal Civil Judge and
JMFC, Sankeshwar vide Anneuxre-E; and restore the
execution petition No.21/2012 on the file of Principal
Civil Judge and JMFC, Sankeshwar, Tal: Hukkeri, Dist:
Belagavi.


      This Writ Petition coming on for Preliminary
Hearing in 'B' Group, this day, the Court made the
following:
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                               ORDER

The petitioners have the benefit of a compromise

decree for specific performance in O.S. No.200/2010 on

the file of the Civil Judge, Sankeshwar, and their

subsequent execution proceedings in E.P. No.21/2012

is closed by the impugned order which reads as under:

"On perusal of the order sheet it reveals that, the case posted for enquiry on 11-01-2017, 09-02-2017, 25-03-2017, 28-04-2017, 23-06-2017, 16-09-2017, 16-12-2017 and today. But Dhr is not present and not lead evidence. It shows that Dhr is not interest to contest this execution petition. Hence prayer of Dhr counsel is hereby rejected and this execution petition is disposed for non prosecution."

In the light of the undisputed fact that the

petitioners have the benefit of decree for specific

performance and the respondent-judgment debtor has

not executed the sale deed in terms of the compromise,

the petitioners, who are not able to deny their

absence/representation before the executing Court on

the dates aforesaid, must have another opportunity to

prosecute the execution proceedings because of the fact

that the petitioners could have filed another execution

petition. Therefore, the impugned order is quashed and

the execution proceeding is restored for disposal strictly

in accordance with law with due opportunity to the

respondent. The parties shall appear before the

executing Court on 17th of January 2022 without

further notice

The Petition stands disposed of accordingly.

Sd/-

JUDGE Kms