Karnataka High Court
Sri. V Narasegowda vs Sri. Jithendra Paul on 17 June, 2022
Bench: Ashok S.Kinagi
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.58026 OF 2018 (GM-CPC)
BETWEEN:
SRI. V NARASEGOWDA
S/O LATE VENKATEGOWDA
AGED ABOUT 70 YEARS
R/A OLD NO.191, NEW NO.179
GAVIPURA WEST, HANUMANTHANAGAR
BENGALURU-560 019.
...PETITIONER
(BY SRI. RUDRAPPA P, ADVOCATE)
AND:
SRI. JITHENDRA PAUL
S/O LATE M GADIGAPPA
AGED ABOUT 45 YEARS
R/A NO.213, 2ND FLOOR, 1ST MAIN ROAD,
SAMPANGI RAM NAGAR, BENGALURU-560 027.
....RESPONDENT
(BY SRI. R B SADASIVAPPA, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER ON I.A.NO.2 FILED BY THE
PETITIONER U/S 151 OF CPC IN EXECUTION PETITON
NO.753/2018, DATED 01.12.2018 (PRODUCED AT
ANNEXURE-G) ON THE FILE OF THE XVIII ADDITIONAL
CITY CIVIL COURT (CCH-10), BENGALURU AND ETC.
2
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The judgment debtor aggrieved by the order
dated 1.12.2018 on I.A.No.2, passed in Execution
No.753/2018 by the XVII Additional City Civil Judge,
Bengaluru, has filed the present writ petition.
2. Brief facts leading rise to filing of this petition
are as under:
The respondent filed a suit in O.S.No.8693/2011.
The said suit came to be decreed vide judgment dated
12.12.2017. The respondent filed Execution Petition
in Ex.No.753/2018. The petitioner aggrieved by the
judgment and decree passed in the aforesaid suit,
preferred appeal in RFA No.247/2018. This Court vide
order dated 24.7.2018 passed an interim order
directing the petitioner to deposit a sum of
Rs.10,00,000/- and directed the respondent not to
precipitate the execution proceedings. The petitioner
filed an application for extension of time to deposit
Rs.10,00,000/- as directed by this Court in the
aforesaid appeal. The said application is pending. In
the meanwhile, the Trial Court passed an order on
31.10.2018 issuing warrant for delivery of possession
in respect of suit property. The petitioner filed I.A.2
to recall the aforesaid order. The said application
came to be rejected. Hence the petitioner aggrieved
by the same, has filed this writ petition.
3. Heard learned counsel for petitioner and
learned counsel for respondent.
4. Learned counsel for the petitioner submits
that the Executing Court has committed an error in
issuing warrant for delivery of possession during the
pendency of the appeal i.e. the Regular First Appeal.
He further submits that the petitioner has deposited a
sum of Rs.10,00,000/- as per the order passed in RFA
No.247/2018. Hence he submits that the order
passed by the Executing Court is arbitrary and
erroneous. Hence, on these grounds, he prays to
allow the writ petition.
5. Per contra, learned counsel for the
respondent submits that the petitioner has not
deposited the amount as ordered by this Court in the
aforesaid appeal within stipulated period. He
submitted that the petitioner has filed an application
seeking for extension of time to deposit the amount.
The said application is pending. He further submits
that the order dated 31.10.2018 issuing warrant for
delivery of possession has been executed on
17.12.2018 and respondent has been put in
possession. Hence, the application filed by the
petitioner for recalling order dated 31.1.2018 has
become infructuous in view of the subsequent
development. He further submits that the petitioner
has also filed an application seeking for restitution of
possession in the aforesaid appeal, which is pending.
Hence, on these grounds, he prays to dismiss the writ
petition.
6. Perused the records and considered the
submissions made by learned counsel for the parties.
7. Respondent filed a suit for specific
performance of contract. The said suit came to be
decreed. The respondent filed execution petition.
During the pendency of the Execution Petition, the
petitioner aggrieved by the judgment and decree
passed in the aforesaid suit, filed an appeal in RFA
No.247/2018. In the meanwhile, the Executing Court
issued warrant for delivery of possession in respect of
said schedule property and the same was executed on
17.12.2018 and the respondent was put in possession
of the suit schedule property. Further, the petitioner
has also filed an application for restitution of
possession in the aforesaid appeal. Order dated
31.10.2018 for issuance of delivery warrant has
already been executed on 17.12.2018. In view of the
same, application-I.A.2 filed by the petitioner, to
recall the order dated 31.10.2018 has become
infructuous. In view of the same nothing survives for
consideration in this writ petition.
8. Accordingly, the writ petition is dismissed.
Liberty is reserved to the petitioner to agitate his
grievance in RFA No.247/2018.
All the contention of the parties are kept open.
SD/-
JUDGE
rs
