Karnataka High Court
Sri.Tilak S/O Omu Gouda vs Smt.Rekha Vighneshwar Gouda on 7 March, 2022
Bench: Suraj Govindaraj
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 07TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
CIVIL REVISION PETITION NO.100135/2019
BETWEEN
1. SRI. TILAK S/O. OMU GOUDA,
AGE 60 YEARS, OCC: COOLIE,
R/O. OKKANAHALLI, ARGA VILLAGE,
KARWAR TALUK,
DISTRICT UTTARA KANNADA - 581307.
2. SRI. RAMA S/O. OMU GOUDA,
AGE 56 YEARS, OCC: DRIVER,
R/O. SEA BIRD COLONY,
TODUR, KARWAR TALUK,
DISTRICT UTTARA KANNADA - 581307.
3. SRI. BALA S/O. OMU GOUDA,
AGE 45 YEARS, OCC: COOLIE,
R/O. CHENDILA, KARWAR,
UTTARA KANNADA DISTRICT - 581307
... PETITIONERS
(BY SHRI. J.S.SHETTY, ADVOCATE)
AND
1. SMT. REKHA VIGHNESHWAR GOUDA,
AGE 55 YEARS, OCC: HOUSEWIFE,
R/O. NEAR BHUDEVI TEMPLE,
BAITHKOL VILLAGE, KARWAR,
DISTRICT: UTTARA KANNADA - 581307.
2. SRI. YUVARAJ S/O. PURSU GOUDA,
AGE 53 YEARS, OCC: COOLIE,
R/O. SEA BIRD COLONY,
TODUR, KARWAR TALUK,
:2:
DISTRICT : UTTARA KANNADA - 581307
3. SRI. PRAMOD S/O. PURSU GOUDA,
SINCE DECEASED BY HIS L.RS.
3A. SANJANA W/O. PRAMOD GOUDA,
AGE 33 YEARS, OCC: HOUSEHOLD WORK,
3B. PRAKAS S/O. PRAMOD GOUDA,
AGE 16 YEARS, OCC: STUDENT.
3C. PREMA D/O. PRAMOD GOUDA,
AGE 14 YEARS, OCC: STUDENT,
ALL ARE C/O. SEA BIRD COLONY,
TODUR, TQ. KARWAR,
DISTRICT UTTARA KANNADA-581324
4. SRI. SATISH S/O. PURSU GOUDA,
AGE 46 YEARS, OCC: SECURITY GUARD,
R/O. NEAR BHUDEVI TEMPLE,
BAITHKOL VILLAGE, KARWAR,
DISTRICT : UTTARA KANNADA - 581307.
5. SMT RANJANA W/O. MANI GOUDA,
AGE 47 YEARS, OCC: HOUSEWIFE,
R/O. QUARTERS NO.E61, ADITYA BIRLA,
CO. BINAGA POST, KARWAR TALUK,
DISTRICT UTTARA KANNADA - 581307
... RESPONDENTS
(SRI. VENKATESH M. KHARVI, ADVOCATE FOR R1, R2, R4 AND R5
AND FOR PROPOSED R3(A) TO R3(C);
R3 DECEASED;
R3(B) AND R3(C) ARE MINORS, REPTD. BY R3(A)
THIS CRP IS FILED UNDER SECTION 115 OF CPC, PRAYING
TO CALL FOR THE RECORDS OF THE EXECUTION CASE NO.2/2019
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, KARWAR
AND THE ORDER DATED 13.09.2019 PASSED BY THE PRINCIPAL
CIVIL JUDGE, KARWAR IN EXECUTION CASE NO.2/2019 BE SET
ASIDE BY ALLOWING THIS REVISION PETITION.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
:3:
ORDER
1. The petitioners are before this Court, seeking for
the following reliefs:
"To call for the records of the
Execution Case No.2/2019 on the file of the
Principal Civil Judge, Karwar, and the order
dated 13.09.2019 passed by the Principal
Senior Civil Judge, Karwar in Execution
Case No.2/2019 may kindly be set aside, by
allowing this revision petition."
2. Execution Case No.2/2019 had been filed for
executing the compromise decree passed in
O.S.No.47/2014. On the filing of the said execution
proceedings, the petitioners herein who were the
Judgment Debtors had contended that, the
execution proceedings cannot be initiated without
the final decree proceedings being resorted to and
that the amount which had been claimed being in
the nature of entitlement as also in the nature of
recovery from the petitioner on the ground that the
petitioner has drawn excess amount cannot be
countenanced inasmuch as the execution Court
cannot go beyond the decree, the amounts sought
for in the execution proceedings being more than
what was required to be paid, the said execution
proceedings are not sustainable.
3. The trial Court after considering the said objection
rejected the contention of the petitioners on the
ground that, since both the parties had
compromised the suit and it is only a question of
monies which are to be distributed, there was no
requirement for filing another FDP proceedings, and
as such rejected the contentions of the petitioners
who were the Judgment Debtors therein. It is
aggrieved by the same, the petitioners are before
this Court.
4. Sri. J.S.Shetty, learned counsel appearing for the
petitioners would again reiterate the submissions
made before the execution Court and submit that,
the suit being one for partition, no execution
proceedings could be initiated without final decree
proceedings having culminated and he also
reiterates that the amounts which have been
claimed being allegedly on account of excess
amount drawn by the petitioner, the same cannot
be determined in the execution proceedings,
inasmuch as there is a lis which would have to be
decided, which cannot be so done in the said
execution proceedings.
5. Per contra, Sri. Venkatesh M. Kharvi, learned
counsel for the respondents submits that, the trial
Court has rightly decided the matter. There are no
final decree proceedings which are required
inasmuch as there is a compromise arrived at to
distribute the compensation amounts in terms of
the agreement arrived at in the compromise
petition. There is no requirement for dividing the
properties by metes and bonds. Furthermore, he
submits that the aspect of the petitioner having
withdrawn the excess amounts has been admitted
and therefore, a claim has been made and the
execution proceedings therefore are proper and
valid as held by the trial Court.
6. Heard Sri. J.S.Shetty, learned counsel for the
petitioner and Sri. Venkatesh M. Kharvi, learned
counsel for the respondents. Perused the papers.
7. Admittedly, there is a compromise entered into in
O.S.No.47/2014, which was a suit for partition and
in the said suit what was sought for though as a
partition was a share of the parties therein, in the
enhanced compensation amount awarded in lieu of
the acquisition of lands which were described in the
suit schedule.
8. Thus, even when the suit was filed, the acquisition
proceedings had been completed and compensation
amounts awarded, there is no property which was
available for partition by metes and bonds. In the
said suit, a compromise petition had been filed,
wherein the respective parties had agreed to
receive 1/3rd share of the enhanced compensation
in the various land acquisition cases which were
pending as on that date, wherein the amounts had
been deposited.
9. After the compromise being entered into, the
aforesaid execution proceedings came to be filed.
10. In my considered view and opinion, the suit cannot
be said to be stricto sensu a partition suit requiring
initiation of final decree proceedings. In the present
case, it is only a claim as regards compensation
amounts that too enhanced compensation amounts
which are to be awarded in the various land
acquisition cases filed by the parties. In that
background, when the parties have agreed that
each branch of the family is entitled for 1/3rd of the
compensation amounts, the partition being only
insofar as the amounts, the question of any final
decree proceedings being required to be initiated
does not arise at all.
11. As regards the second issue relating to withdrawal
of the excess amount or not, the fact remains that
there are certain amounts which have been
withdrawn by the petitioner from the SLAO.
Whether the same is in excess or not is not
material. The petitioner could not in the teeth of
the compromise decree have withdrawn any
amount from the SLAO. The parties having agreed
that each branch has to receive 1/3rd share of the
compensation amount, no particular branch could
have withdrawn any amount without the consent
and concurrence of the other party.
12. The withdrawal of the said amount by the
petitioners/Judgment Debtors is completely
dishonest and the same could not have been done.
13. In view thereof, I am of the considered opinion
that, the interest of justice would be served by
directing the petitioners to deposit all amounts that
have been received from the SLAO in the executing
Court, the trial Court would also direct the SLAO to
deposit any amounts remaining with the said SLAO
in the said execution proceedings. In the event of
any other parties having withdrawn the amount,
such party is also directed to deposit the amount
received in the execution Court. Thereafter, the
executing Court to execute the compromise decree
reflected in the compromise petition and decree at
the rate of 1/3rd each to the different branches of
the family.
14. With the above observation, the writ petition stands
dismissed.
Sd/-
JUDGE
SVH
