Karnataka High Court
Ningavva D/O Channappa Dalal vs Sheetappa Ramalingappa ... on 3 March, 2022
Bench: Suraj Govindaraj
WP NO.100867/2022
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
WRIT PETITION No.100867/2022 (GM-CPC)
BETWEEN:
NINGAVVA D/O CHANNAPPA DALAL
AGE: 45 YEARS, OCC: HOME MAKER
R/O. YADAWAD TQ. MUDALAGI-591136
DIST. BELAGAVI.
...PETITIONER
(BY SRI. C.S SHETTAR & SMT. KAVYA C. SHETTAR,
ADVOCATES)
AND:
SHEETAPPA RAMALINGAPPA KUNDARAGI
AGE: 54 YEARS, OCC: AGRICULTURE
R/O. MUDHOL-587313
DIST. BAGALKOTE
...RESPONDENT
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO:
A. ISSUE A WRIT OF CERTIORARI QUASHING THE
IMPUGNED ORDER PASSED BY LEARNED PRINCIPAL
SENIOR CIVIL JUDGE AT GOKAK IN EP.NO.03/2018 ON
I.A.NO.2 DATED 24.01.2022 VIDE ANNEXURE-F.
B. CONSEQUENTLY ALLOW THE APPLICATION UNDER
I.A.NO.2 FILED U/SEC.11 (EXPLANATION VII) OF CPC.
WP NO.100867/2022
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THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the
following reliefs:
A. Issue a writ of certiorari quashing the
impugned order passed by learned
Principal Senior Civil Judge at Gokak in
E.P.No.03/2018 on I.A.No.2 dated
24.01.2022 vide Annexure-F.
B. Consequently allow the application under
I.A.No.2 filed U/Sec.11 (Explanation VII)
of CPC.
C. Pass any other orders which this Hon'ble
Court deems fit.
2. E.P.No.03/2018 has been filed seeking for
enforcement of the decree passed in O.S
No.102/2007 insofar as handing over possession of
the subject matter of the agreement of sale, which is
directed to be specifically performed in
O.S.No.102/2007.
3. Sri. C. S. Shettar, learned counsel for the petitioner
submits that, on an earlier occasion, E.P.No.22/2010
had been filed for the execution of the said decree,
WP NO.100867/2022
where it came to be withdrawn on account of an
appeal having been filed. Subsequent thereto,
another Execution Petition in E.P.No.51/2016 had
been filed, wherein on 18.11.2017, a memo had been
filed by both the parties stating that they are fully
satisfied with the decreetal amount and hence the
memo was accepted and the E.P. was closed as fully
satisfied.
4. Hence the learned counsel submits that, the
subsequent Execution Petition in EP 3 of 2018 could
not have been filed seeking for the execution of the
same decree in view of the recording of full
satisfaction on 18.11.2017 and in this regard, he
relies upon Explanation (VII) to Section 11 of the
Code of Civil Procedure, 1908. The said explanation
is reproduced hereinbelow for easy reference:
Secti"Section 11. Res judicata.
xxxxxxxxxxxxxxxxxxxxxxxxx
Explanation VII.--The provisions of this section
shall apply to a proceeding for the execution
of a decree and references in this section to
any suit, issue or former suit shall be
construed as references, respectively, to a
WP NO.100867/2022
proceeding for the execution of the decree,
question arising in such proceeding and a
former proceeding for the execution of that
decree.
5. Relying upon the same, he submits that Section 11 of
CPC would be equally applicable to execution
proceedings, the earlier E.P.No.51/2016 having been
disposed of as fully satisfied, the question of filing
E.P.No.3/2018 would not arise. He submits that, in
view of the filing of E.P.No.3/2018, the date is fixed
for issuance of possession warrant and if such
warrant is issued, the petitioner could be put to
tremendous hardship and inconvenience. On this
ground he submits that this Court ought to entertain
the above petition and pass necessary orders in
favour of the petitioner.
6. Heard Shri C S Shettar the learned counsel for the
Petitioner and perused papers, notice to Respondents
is dispensed with on account of the orders proposed
to be passed.
WP NO.100867/2022
7. The only ground which has been urged is the
applicability of the principle of res judicata in terms of
Section 11 of the CPC, by relying on the Explanation-
VII to said Section 11 of CPC, which is reproduced
hereinabove.
8. A reading of Explanation-VII to Section 11 of CPC,
indicates that, any issue which has been decided
earlier cannot be re-agitated and re-decided even in
the execution proceedings. In the present case,
E.P.No.3/2018 has been filed only for the purpose of
execution by delivery of possession, which would not
require any adjudication to be made by the Execution
Court.
9. The possession not having been handed over in
furtherance of a decree for specific performance by
an agreement of sale, the issuance of possession
warrant by proceeding with E.P.No.3/2018, in my
considered opinion, would not amount to deciding any
issue or re-agitation of any issue already decided by
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making Explanation-VII to Section 11 applicable to
the said proceedings.
10. This is one more classic case of execution
proceedings been delayed and protracted dealt by a
dishonest judgment debtor, who having received the
entire sale consideration and having executed the
sale deed, does not wish to handover the possession
of the property, thereby depriving the decree-holder
of the fruits of the decree obtained in a suit, which
was filed in the year 2007, the decree having been
passed on 08.01.2010.
11. Thus, from the last twelve yeas, the decree-holder
has been deprived of the fruits of the decree, which in
my opinion is completely unconscionable. The relief
which is sought for on the aforesaid grounds or
otherwise, in my considered opinion, cannot be
granted.
12. The petition being an abuse of process of law, is
required to be dismissed and is therefore so
WP NO.100867/2022
dismissed. This Court refrains from imposing cost in
the matter considering the submission made by
learned counsel Sri. C. S. Shettar, if not, for the same
cost would have been imposed.
Sd/-
JUDGE
gab
