Dawalsab S/O Nabisab Bepari vs Mallappa S/O Hanamantraya Helwar
2022 Latest Caselaw 941 Kant

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         IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

    DATED THIS THE 20TH DAY OF JANUARY, 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE E.S.INDIRESH


     WRIT PETITION No.205241/2019 (GM-CPC)

BETWEEN:

Dawalsab S/o Nabisab Bepari
Age: 52 years, Occ: Cattle Business
Darbar Galli
Near Nalband Masjid, Vijayapur
                                              ... Petitioner

(By Sri Sanganagouda V. Biradar, Advocate)

AND:

Mallappa S/o Hanamantraya Helwar
Age: 57 Years, Occ: Business
R/o A/p Khanapur
Tq. Sindagi, Dist.Vijayapur
                                        ... Respondent
(By Sri G.G. Chagashetti,
    Sri I.R. Biradar and LT.Pujari, Advocates)

       This writ petition is filed under Article 227 of
Constitution of India, praying to issue a writ, order or
direction in nature of certiorari quashing Annexure-E, viz.,
order dated 19.03.2019 passed by the Senior Civil Judge &
JMFC, Sindagi on I.A.No.1 in E.P.No.98/2018 keeping the
said IA No.1 in abeyance and issuing notice to the third
parties and etc.
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      This petition coming on for orders, this day, the
Court made the following:-

                           ORDER

Though this writ petition is listed for orders, by the

consent of the parties, it is taken up for final disposal.

2. The petitioner is the decree holder in Execution

Petition No.100/2017 before the Principal Senior Civil

Judge & CJM, Vijayapura. The petitioner claims to be

claimant in MVC No.1762/2013 on the file of the MACT-V,

which came to be allowed by the Tribunal by judgment

and award dated 04.03.2017, awarding Rs.7,71,775/-. The

claimant thereafter filed Execution Petition before the

Principal Senior Civil Judge & CJM, Vijayapura, however

same was transferred to Senior Civil Judge, Sindagi in

Execution No.98/2018. The petitioner has filed application

under Order 21 Rule 66 of Code of Civil Procedure, seeking

an order of proclamation of sale by public auction of

immovable property belonging to the judgment debtor and

the said application came to be disposed of by the trial

Court keeping in abeyance and thereby issued notice to

the plaintiff and defendant Nos.1 to 4 and 6 in OS

No.319/2017 before the Addl. Civil Judge & JMFC, Sindagi.

Petitioner has also filed I.A.No.3 under Section 47 r/w

Section 151 of Code of Civil Procedure to recall the order

dated 19.03.2018. Being aggrieved by the orders passed

by the trial Court, dismissing the application in IA No.3 and

the order dated 19.03.2019, petitioner has presented this

writ petition.

3. I have heard Sri Sanganagouda V. Biradar,

learned counsel appearing for the petitioner and Sri G.G.

Chagashetti, learned counsel appearing for the respondent.

4. Learned counsel appearing for the petitioner

contended that the Execution Court ought to have attached

the properties of the judgment debtor to recover the

compensation awarded by the Motor Accident Claims

Tribunal. It is the case of the petitioner that, the

judgment debtor are protracting the proceedings by filing

suits and the said aspect of the matter was not considered

by the trial Court and therefore he sought for interference

in the impugned order.

5. Per contra, learned counsel appearing for the

respondent sought to justify the impugned orders.

6. In the light of the submission made by the

learned counsel for the parties, the MACT-V, Vijayapura in

MVC No.1762/2013 dated 04.03.2017 awarded

compensation and in order to execute the same, the

petitioner/claimant filed E.P.No.100/2017 before the

Senior Civil Judge and CJM Court, Vijayapura, however,

same was transferred to Senior Civil Judge & JMFC,

Sindagi in E.P.No.98/2018. The trial Court after

considering the averments made in the application in

I.A.No.1 has arrived at the conclusion that the

O.S.No.319/2017 has been instituted by the son of the

judgment debtor and in the said suit the share of the

judgment debtor is 1/7th and the trial Court has passed

preliminary decree, holding that the judgment debtor is

having share in the suit schedule properties mentioned in

the partition suit. It is also forthcoming from para-11 of

the order dated 19.03.2019 that the Final Decree

proceedings have to be completed pursuant to the

judgment and decree in OS No.319/2017. In the backdrop

of these aspects, the trial Court was justified in holding

that the Court notice to be issued to the party concerned

in O.S. No.319/2017, and as such rightly kept the

application in abeyance in I.A.No.1 by impugned order

dated 19.03.2019 and issued notice to the respective

parties, and therefore, I do not find any illegality in the

impugned order passed by the trial Court. That apart,

petitioner has filed I.A.No.3 under Section 47 R/w Section

151 of Code of Civil Procedure to recall the order dated

19.03.2019 and the trial Court with the detailed reasoned

order, dismissed the I.A.No.3 holding that the issuing

notice to the respective parties in the OS No.319/2017

would not cause any injustice to the decree holder and in

that view of the matter, taking into consideration the

finding recorded by the trial Court at para No.9 in the

order dated 27.09.2019, I am of the view that the trial

Court has rightly passed the impugned orders which does

not calls for any interference in this writ petition.

Accordingly, the writ petition is dismissed.

Sd/-

JUDGE

BL