Kengegowda @ Sannegowda vs Somashekar H S
2022 Latest Caselaw 8664 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 13TH DAY OF JUNE 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE ASHOK.S.KINAGI

       WRIT PETITION NO.57175 OF 2018 (GM-CPC)
BETWEEN:

1.     KENGEGOWDA
       @ SANNEGOWDA
       AGED ABOUT 76 YEARS
       S/O LATE HONNEGOWDA.

2.     HEMARAMJA
       AGED 36 YEARS
       S/O KENGEGOWDA @ SANNEGOWDA.

       BOTH ARE RESIDING AT
       DODDAGOPANAHALLI VILLAGE
       HALLI MYSORE HOBLI
       HASSAN DISTRICT.
                                           ...PETITIONERS
(BY SRI.KARUMBAIAH T.A., ADVOCATE)

AND:

SOMASHEKAR H.S.,
AGED 44 YEARS
S/O SHESHANNA
R/AT ODDARANEBAVI BEEDHI
FORT, HOLENARASIPURA TOWN
HASSAN DISTRICT - 571 312.
                                           ...RESPONDENT
(BY SRI.A.SHIVARAMA, ADVOCATE)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CRTIORARI TO QUASH ANNEXURE-G THE ORDER DATED
                                 2




29.11.2018 PASSED BY THE ADDITIONAL CIVIL JUDGE AND
JMFC HOLENARASIPURA ON I.A.NO.1 IN EX.NO.38/2016 AND
REJECT I.A.NO.1 FILED BY THE RESPONDENT AND ETC.
     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:

                          ORDER

The petitioners aggrieved by the order on I.A.No.I

dated 29.11.2018 passed in Ex.No.38/2016 by the

Additional Civil Judge & JMFC, Holenarasipura have filed

this writ petition.

2. Brief facts leading to filing of this writ petition

are as under:

The respondent filed a suit in O.S.No.235/2014 for

specific performance of contract. The said suit came to be

decreed on 05.10.2015 and directed the petitioners to

execute a registered sale deed after receiving the balance

consideration amount. Since, petitioners did not execute

the registered sale deed in favour of the respondent, the

respondent filed execution petition in Ex.No.38/2016. The

respondent filed an application seeking appointment of an

advocate as commissioner to execute the registered sale

deed in respect of suit schedule property in favour of the

respondent as per the decree passed in O.S.No.235/2014.

The said application came to be allowed by the trial Court

vide order dated 29.11.2018. Hence, the petitioners

aggrieved by the same have filed this writ petition.

3. Heard the learned counsel for the petitioners.

4. Learned counsel for the petitioners submits

that the petitioners have filed a petition to set aside the

decree passed in favour of the respondent in

Misc.No.3/2018. He submits that during pendency of

Miscellaneous petition, the execution Court ought not to

have passed the impugned order. He submits that the

order passed by the execution Court is arbitrary and

erroneous. Hence, he prays to allow the petition.

5. Heard and perused the records and

considered the submissions of the learned counsel for the

parties.

6. It is not in dispute that the respondent filed

suit in O.S.No.235/2014 for specific performance of

contract. The said suit came to be decreed vide judgment

and decree dated 05.10.2015 and directed the petitioners

to execute the registered sale deed after receiving the

balance consideration amount. The petitioners did not

execute the registered sale deed in terms of the judgment

and decree passed in the aforesaid suit. The respondent

filed execute petition. In the execution petition, respondent

filed an application to appoint an advocate as a Court

Commissioner to execute the registered sale deed in

respect of the suit schedule property in favour of the

respondent. It is the contention of the petitioners that the

petitioners have challenged the ex-parte decree passed in

the aforesaid suit in Misc.No.3/2018.

7. From the perusal of the case status of trial

Court website it is found that the said Misc.No.3/2018

came to be dismissed on 05.12.2019. In view of dismissal

of Misc.No.3/2018, the judgment and decree passed in the

aforesaid suit has attained finality. The petitioners have

not produced any record to show that the petitioners have

challenged the order passed in Misc.No.3/2018. In view of

the same the trial Court was justified in passing the

impugned order. Accordingly, I do not find any grounds to

interfere with the impugned order. Accordingly, the writ

petition is dismissed.

SD/-

JUDGE

pgg