Smt Sujatha Naik vs Sri B Bhujanga Shetty
2022 Latest Caselaw 8746 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF JUNE, 2022

                      BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

      WRIT PETITION NO. 5257 OF 2022 (GM-CPC)

BETWEEN:

SMT SUJATHA NAIK
D/O LATE KUSHTAPPA NAIK
AGED 38 YEARS
R/AT MELMATA
ARURU VILLAGE, BRAHMAVARA TALUK
UDUPI DISTRICT - 576 213

(SINCE NO RELIEF IS CLAIMED AGAINST J.DR. NO.1 I.E.
SMT SUSHEELA NAIK
W/O LATE KUSHTAPPA NAIK
HENCE SHE IS NOT MADE AS PARTY TO THIS WRIT
PETITION)
                                       ...PETITIONER
(BY SRI.KARUNAKARA.P, ADVOCATE)


AND

SRI B BHUJANGA SHETTY
S/O LATE SHEENA SHETTY
AGED 69 YEARS
R/AT GUDEBETTU VARMBALLI VILLAGE
BRAHMAVARA TALUK
UDUPI DISTRICT
                                      ...RESPONDENT

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE ORDER DATED 16.12.2021 PASSED IN
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ANNEXURE-A EXECUTION PETITION NO.36/2020 BY
PRINCIPAL SENIOR CIVIL JUDGE AND CJM, UDUPI AND
ETC.,

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                           ORDER

The captioned writ petition is filed by the

Judgment Debtor, who is questioning the order dated

16.12.2021 passed by the learned Prl. Senior Civil

Judge and CJM in Execution Petition.No.36/2020 as

per Annexure-A, over ruling the objection raised by

the Judgment Debtor to stay the proceedings.

2. The respondent/decree holder instituted a suit

for specific performance of contract in

O.S.No.49/2017. The said suit, on contest, was

decreed granting discretionary relief of specific

performance in favour of plaintiff. The present

Judgment Debtor has not challenged the decree

passed in O.S.No.49/2017. On receipt of notice in

Execution Proceedings, the Judgment Debtor who has

suffered a decree, has come up with objection

contending that the decree is not at all executable and

the same is hit by the provisions of Section 4 and 5 of

Karnataka Scheduled Castes and Scheduled Tribes

(Prohibition of Transfer of Certain Lands) Act, 1978

Act (in short 'PTCL' Act). The Executing Court has over

ruled the said objections in regard to maintainability

of Execution Petition. The Executing Court has not

acceded to the contention raised by the Judgment

Debtor that the decree is void ab initio. The said order

is under challenge.

3. Heard the learned counsel appearing for the

petitioner/Judgment Debtor. Perused the order under

challenge.

4. On examination of material placed on record,

this Court would find that the present petitioner/

Judgment Debtor in Execution Proceeding No.36/2020

has suffered a decree in O.S.No.49/2017. The Court

has directed the present petitioner to perform his part

of contract and consequently, execute sale deed in

terms of the suit agreement. The said decree has

attained finality as petitioner has not opted to

challenge the decree. The petitioner, by filing

objections, intend to re-litigate the same issue in

Execution Proceedings. If the decree has attained

finality, the respondent/decree holder is entitled to get

the sale deed executed by having recourse to the

provisions of Order 21 of C.P.C. Whether the

transaction is hit by the provisions of PTCL Act cannot

be adjudicated in an Execution Proceedings.

Therefore, I do not find any error committed by the

Executing Court.

Accordingly, the writ petition is dismissed.

Sd/-

JUDGE HDK