Karnataka High Court
Sri. Ayaz Shariff vs Sri. Erappa on 15 March, 2022
Bench: Dr.H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION No.64724 OF 2016 (GM-CPC)
BETWEEN:
1. Sri. Ayaz Shariff
Aged about 34 years
S/o. Sri. Rehaman Shariff
2. Sri. Nayaz Shariff
Aged about 32 years
S/o. Sri. Rehaman Shariff
Both are R/at E.W. House
No.16 & 12, C/o. Nanjashetty
2nd Cross, Adarsanagara
Extension, Hassan - 573201.
.. Petitioners
(By Smt. Tasmiya Tabsum for
Sri. Mushtaq Ahmed, Advocate)
AND:
Sri.Erappa
S/o. Sanna Shetty,
Aged about 62 years
R/at Shettara Beedhi
Badavane, Alur.
Hassan District 573 201.
.. Respondent
(By Sri. Mohan P.S., Advocate)
****
W.P.No.64724/2016
2
This Writ Petition is filed under Article 227 of the
Constitution of India, praying to issue writ of mandamus or any
other appropriate writ, order for directing quashing Annexure L
and M in Misc.No.15/2013 dated 07-01-2015 on the file of the
Additional Senior Civil Judge at Hassan and M.A.No.10/2015 on
the file of III Additional District Judge and MACT at Hassan
passed on 26-08-2016 and restore the O.S.No.20/2009 on the
file of Additional Senior Civil Judge at Hassan and pass such
other relief/s as deemed fit and proper in the circumstances of
the case.
This Writ Petition coming on for Hearing, through Physical
Hearing/Video Conferencing Hearing, this day, the Court made
the following:
ORDER
The present respondent as a plaintiff in
O.S.No.20/2009 on the file of the learned Additional
Senior Civil Judge at Hassan (hereinafter for brevity
referred to as "the Trial Court") had instituted the suit
against the present petitioners, arraigning them as
defendants, for the relief of specific performance of an
agreement with respect to purchase of an immovable
property by the plaintiff.
2. The defendants in the said suit (petitioners herein)
though served with the summons, did not choose to appear,
as such, they were placed ex-parte and the matter was
W.P.No.64724/2016
proceeded further and the suit came to be decreed ex-parte
under the judgment and decree dated 22-06-2011.
Seeking to recall the said ex-parte judgment and decree,
the defendants therein (petitioners herein) filed a
Miscellaneous case under Order IX, Rule 13 of the Code of
Civil Procedure, 1908 (hereinafter for brevity referred to as
"the CPC") in Misc.No.15/2013.
3. After contest, the said Misc.No.15/2013 came to be
dismissed by the judgment of the District Court dated
07-01-2015. Challenging the same, the defendants in the
original suit (petitioners herein) preferred an appeal under
Order XXXXIII, Rule 1 of the CPC in Misc. Appeal
No.10/2015, in the Court of the learned III Additional
District Judge and M.A.C.T. at Hassan (hereinafter for
brevity referred to as "the District Court"), which also, by
the order of the said Court dated 26-08-2016, came to be
dismissed. Aggrieved by the same, the defendants in the
Original Suit have preferred this writ petition.
W.P.No.64724/2016
4. The plaintiff/respondent herein is being
represented by his learned counsel.
5. Today, when the matter is taken up, learned Junior
counsel for the petitioners prays for time. However, the
Court, after perusing the previous order sheets, declined to
grant any further adjournment. Hence, the matter was
proceeded further.
6. Learned counsel for the respondent herein
(plaintiff), while reiterating his submission that, in
pursuance of the judgment and decree passed in
O.S.No.20/2009, a registered Sale Deed has already been
executed in favour of the plaintiff by the Commissioner
appointed by the Court, which was prior to the institution
of the present writ petition, as such, the present writ
petition has become infructuous, stated that in that regard,
he has placed before the Court the copies of the summons
in Execution No.245/2011, registered Sale Deed dated
W.P.No.64724/2016
26-04-2013, tax paid register extract and other incidental
documents.
7. A perusal of the copy of the registered Sale Deed
would go to show that, with respect to the suit schedule
property, a registered Sale Deed has already been executed
in favour of the plaintiff under a registered Sale Deed dated
26-04-2013 and registered on the same day, i.e.
26-04-2013. Before ordering execution of the Sale Deed
through the Court Commissioner, the District Court in
M.A.No.10/2015 had also observed that seeking execution
of the judgment and decree, the plaintiff had filed
Execution No.245/2011, wherein the judgment debtors
(petitioners herein) appeared through their counsel, but did
not file any objections in the execution petition. Observing
so and also giving several other reasons, the District Court
has dismissed the said M.A.No.10/2015. Thus, for
dismissing M.A.No.10/2015, the District Court has
attributed convincing reasons. As such, the same does not
warrant any interference by this Court.
W.P.No.64724/2016
8. Further, even prior to the filing of this writ
petition, since the decree has already been executed and a
Sale Deed has already been executed through a
Commissioner appointed by the Court with respect to the
suit schedule property, the present writ petition does not
deserve to be allowed. Accordingly, the writ petition stands
dismissed.
Sd/-
JUDGE
BMV*
