Shabbir S/O Babusab Byakod vs Bhaurao S/O Eknath Bandi
2022 Latest Caselaw 8757 Kant

                            1           W.P.No.201325/2022


           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 14TH DAY OF JUNE, 2022

                         BEFORE

  THE HON'BLE MR. JUSTICE S. VISHWAJITH SHETTY

   WRIT PETITION No.201325/2022 (GM-CPC)

BETWEEN:

SHABBIR S/O BABUSAB BYAKOD,
AGE: 49 YEARS, OCC: SHOW MAKER
(GARAGE WORK),
R/O: BABALESHWAR NAKA,
JAMAKHANDI ROAD, BEGAWAN COONY,
VIJAYAPUR-596101                       ... PETITIONER

(BY SRI. LIYAQAT FAREED USTAD, ADVOCATE)

AND:

BHAURAO S/O EKNATH BANDI,
AGE: 86 YEARS, OCC: AGRICULTURE,
R/O NEAR YALLAMMA TEMPLE, SHIVATKHANA,
VIJAYAPUR-596101                     ... RESPONDENT

(BY SRI. M.J. INAMDAR, ADVOCATE)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE THE WRIT IN
NATURE OF CERTIORARI AND QUASH THE ORDER DATED
06.06.2022 PASSED BY THE CURT OF IST ADDITIONAL SENIOR
CIVIL JUDGE & CJM AT VIJAYAPURA ON IA NO.2, IN RA
NO.26/2022 VIDE ANNEXURE-G & CONSEQUENTLY ALLOWED THE
IA NO.2 APPLICATION FILED U/O 41 RULE 5 R/W SECTION 151 OF
CPC AND ETC.
                                  2               W.P.No.201325/2022


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

                           ORDER

The petitioner, who has suffered a decree in

O.S.No.67/2015, has preferred the instant writ petition

challenging the order dated 06.06.2022 passed by the court

of I Additional Senior Civil Judge and CJM., Vijayapura on

I.A.No.2 in R.A.No.26/2022 vide Annexure-G.

2. Heard the learned counsel for the petitioner as well

as the learned counsel for the respondent.

3. Brief facts of the case as revealed from the records

are:

The respondent herein had filed O.S.No.67/2015

against the petitioner seeking the relief of declaration and

possession in respect of the suit schedule property. The said

suit was decreed by the trial court on 25 th August 2021.

Thereafterwards the respondent/decree holder has initiated

execution proceedings before the trial court in

E.P.No.27/2022 and in the said proceedings, the executing

court has issued the possession delivery warrant and also

directed the jurisdictional Police to provide Police protection

to the bailiff as well as the decree holder for the purpose of

executing the decree. In the meanwhile, the judgment

debtor/petitioner has filed R.A.No.26/2022 before the first

appellate court challenging the judgment and decree passed

in O.S.No.67/2015 and in the said appeal, I.A.No.1/2022 was

filed under Order XLI Rule 5 read with Section 151 of CPC to

stay the operation and execution of the judgment and decree

passed in O.S.No.67/2015. The said application was opposed

by the decree holder and the first appellate court vide the

order impugned has dismissed the said application and being

aggrieved by the same, the judgment debtor/petitioner is

before this court.

4. Learned counsel for the petitioner submits that the

first appellate court was not justified in dismissing the

application. He submits that if the impugned judgment and

decree is allowed to be executed, nothing survives in the

appeal and therefore, the first appellate court ought to have

allowed the application. He submits that though the bailiff

has filed a report regarding delivery of possession, till date,

the judgment debtor is in possession of the property.

5. Per contra, learned counsel appearing for the decree

holder/respondent submits that the decree passed in the suit

has been already executed and possession has been taken by

the decree holder on 02.06.2022 and this was brought to the

notice of the first appellate court and taking into

consideration the said aspect of the matter, the first

appellate court has dismissed the application and no error

can be found in the said order. He submits that the appeal

filed by the judgment debtor was barred by limitation and the

first appellate court has also taken into consideration the said

aspect of the matter and has rightly dismissed the application

and therefore, no interference is called for.

6. I have carefully appreciated the arguments

advanced on both sides and also perused the material

available on record.

7. Pursuant to the decree passed in O.S.No.67/2015,

the decree holder had initiated execution in E.P.No.27/2022

before the trial court. Though the judgment debtor had

participated in the said proceedings, he had not preferred

any appeal as against the impugned judgment and decree.

It is only after the executing court had issued a delivery

warrant and also given Police protection to the decree holder,

he had thought it fit to file an appeal challenging the

judgment and decree passed by the trial court. In the said

appeal, he has filed an application under Order XLI Rule 5

read with Section 151 of CPC with a prayer to stay the

operation and execution of the judgment and decree passed

in O.S.No.67/2015. By the time the said application came

for consideration before the first appellate court, the

judgment and decree passed by the trial court in

O.S.No.67/2015 was executed and the possession of the

property was already taken by the decree holder and a report

to the said effect was filed by the decree holder before the

first appellate court and the first appellate court having

appreciated the same refused to grant any interim order in

the appeal.

8. Though the learned counsel for the petitioner has

submitted that as on the date he was in possession of the

suit schedule property, prima facie the same cannot be

believed having regard to the order passed by the first

appellate court on the basis of the report submitted by the

bailiff. Therefore, I find no irregularity or illegality in the

impugned order passed by the first appellate court.

Under the circumstances, I find no merit in this writ

petition. Accordingly, the writ petition is dismissed.

Sd/-

JUDGE

KNM/-

CT-SMP