Sri. K. Nagraj vs Smt. Patil Neelamma
2022 Latest Caselaw 549 Kant

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        IN THE HIGH COURT OF KARNATAKA
                DHARWAD BENCH

   DATED THIS THE 12TH DAY OF JANUARY, 2022

                      BEFORE

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

      WRIT PETITION NO.111085/2015 (GM-CPC)

BETWEEN

SRI. K. NAGRAJ
S/O KATRIKI HANUMANTHAPPA
AGE:39 YEARS, OCC. BUSINESS
R/O BEHIND E/T RICE MILL
7TH WARD HADAGALI TALUK
BALLARI DISTRICT
                                     ...PETITIONER
(BY SRI.AAYUSH G. BHAT, ADV.)

AND

SMT. PATIL NEELAMMA W/O LATE KOTRAGOUDA
AGE:MAJOR, OCC. NIL
R/O HIREMALLANKERI VILLAGE
HADAGALI TALUK BALLARI DISTRICT
                                   ...RESPONDENT
(BY SRI.D.M.BANDI, ADV.)

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER DATED:01.04.2015,
PASSED BY THE CIVIL JUDGE AND JMFC, HADAGALI ON
IA.NO.1 IN EXECUTION PETITION NO.12/2012, AT
ANNEXURE-H    AND    CONSEQUENTLY    ALLOW    THE
APPLICATION FILED BY PETITIONER FOR APPOINTMENT
OF COMMISSIONER AT ANNEXURE-D & 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 the plaintiff in O.S.

No.06/2011, has impugned the orders dated

01.04.2015 and 03.10.2015 in E.P. No.12/2012 on the

file of the Civil Judge and JMFC at Huvinahadagali (for

short, 'the executing Court'). The executing Court by

these impugned orders has rejected the petitioner's

application for appointment of a Court Commissioner to

execute sale deed in terms of the decree in the suit in

O.S. No.6/2011 and which is later modified in appeal in

R.A. No.71/2011 on the file of the Principal Senior Civil

Judge and JMFC, Hosapete (for short, "the appellate

Court"). The executing Court by the later impugned

order has closed the execution proceedings.

It is seen from the records that the petitioner's

suit in O.S. No.6/2011 for specific performance is

decreed in part directing the respondents to repay the

earnest amount along with interest at the rate of 10%

p.a. from the date of sale agreement dated 30.12.2008

until the date of deposit. In the appeal filed by the

petitioner in R.A. No.71/2011, the appellate Court has

modified the civil Court's judgment dated 28.02.2011

directing the respondents to pay the suit claim amount

along with future interest at the rate of 10% within

three months from the date of its decree, and with the

further direction that if the respondents fail to deposit

the amount within the time allowed, they shall execute

the sale deed for the subject property in favour of the

petitioner. The appellate Court has also observed that

the petitioner shall be entitled to get such sale deed for

the subject property through the Court Commissioner.

The petitioner has filed the execution petition in

E.P.No.12/2012 contending that the respondents have

not deposited the amount as directed by the appellate

Court and therefore, he is entitled to get the sale deed.

The petitioner has also filed application (I.A. No.1) for

appointment of the Court Commissioner to execute the

sale deed. The executing Court has rejected this

application by the impugned order dated 01.04.2015.

The executing Court has rejected the petitioner's

application primarily for the reason that the respondent

has filed subsequent application I.A. No.2 for leave to

deposit the amount as directed by the appellate Court

and this application is allowed, and with this

application being allowed, the petitioner's application for

appointment of a court Commissioner would not survive

for consideration.

The learned counsel for the petitioner is

categorical in his submissions that he has not

impugned the civil Court's order dated 20.03.2015, an

order by which the respondent's application as aforesaid

is allowed. This order permitting the respondent to

deposit the amount in terms of the appellate Court's

decree though belatedly, has remained unchallenged in

all these years. If the executing Court's order dated

20.03.2015 has not been challenged and as prevailed,

this Court is of the considered view that there is no

reason for interference with the impugned order and the

petition stands rejected accordingly.

Sd/-

JUDGE Rsh