Sri S Ravi vs Sri M N Chandrashekar
2022 Latest Caselaw 4901 Kant

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 16TH DAY OF MARCH, 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE E.S. INDIRESH

      WRIT PETITION NO.14489 OF 2019 (GM-CPC)

BETWEEN

SRI S RAVI
S/O LATE NANJAIAH
AGED ABOUT 50 YEARS
R/AT 2ND CROSS
SIR M V NAGAR
MADDUR TOWN
MANDYA DISTRICT.

                                            ...PETITIONER
(BY SRI RAJANNA L, ADVOCATE)

AND

      1. SRI M N CHANDRASHEKAR
         ADVOCATE
         S/O NANJUNDAIAH
         AGED ABOUT 48 YEARS
         R/AT SRI CHAMUNDI KRUPA
         NEAR MADDURAMMA TEMPLE
         B M ROAD, MADDUR TOWN
         MANDYA DISTRICT.

      2. SMT. NINGAMMA
         W/O LATE NANJAIAH
         AGED ABOUT 66 YEARS
         R/AT T M C MARIYAPPA HOUSE
         3RD CROSS, LEELAVATHI EXTENSION
                                 2




         MADDUR TOWN
         MANDYA DISTRICT.

      3. SRI SHIVARAJE GOWDA
         S/O LATE NANJAIAH
         AGED ABOUT 52 YEARS
         R/AT T M C MARIYAPPA HOUSE
         3RD CROSS, LEELAVATHI EXTENSION
         MADDUR TOWN
         MANDYA DISTRICT.

                                        ....RESPONDENTS
(BY SRI H B CHANDRASHEKAR, ADVOCATE FOR R1;
NOTICE TO R2 AND 3 ARE SERVED BUT UNREPRESENTED)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH /
SET ASIDE THE ORDER DATED 06TH OCTOBER, 2017 ON IA.
NO.5 FILED BY THE 1ST RESPONDENT UNDER ORDER XXI RULE
35 R/W SECTION 151 OF CODE OF CIVIL PROCEDURE., IN
EX.NO.20 OF 2009 AND ALSO THAT OF THE ORDER DATED
25TH OCTOBER, 2018 ON IA.NO.7 FILED BY THE 1ST
RESPONDENT UNDER SECTION 151 OF CODE OF CIVIL
PROCEDURE IN EX.NO.20 OF 2009 PASSED BY THE LEARNED I
ADDITIONAL CIVIL JUDGE AND JMFC, MADDUR VIDE
ANNEXURE-L AND L1 TO WRIT PETITION, CONSEQUENTLY
DISMISS THE SAID APPLICATIONS AND ETC.,

       THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

Judgment debtor No.3 in Execution Petition No.20 of 2009

on the file of the Principal Civil Judge (Jr.Dn.) and JMFC, Maddur,

Mandya District is challenging the order dated 06th October,

2017 passed on IA.No.5 and order dated 25th October, 2018

passed on IA.No.7 filed by the first respondent herein.

2. The brief facts for adjudication of this writ petition are

that the respondent No.1 has filed Original Suit No.312 of 2008

on the file of the Additional Civil Judge (Jr.Dn.) at Maddur,

seeking relief of specific performance. The defendants therein

were served, remained absent. Accordingly, the trial Court,

considering the material on record, by its judgment and decree

dated 03rd January, 2009, decreed the suit and as such, directed

the defendants 1 to 3 to jointly execute the registered sale deed

in favour of the plaintiff in respect of the suit schedule property

by receiving the balance sale consideration of Rs.50,000/- within

30 days from the date of the order. The said judgment and

decree passed by the trial Court in Original Suit No.312 of 2008

was challenged by the defendants in Miscellaneous No.14 of

2009 and Miscellaneous No.6 of 2010 before the First Additional

Civil Judge and JMFC at Maddur. The said Miscellaneous

petitions came to be dismissed by the I Additional Civil Judge

and JMFC Court by order dated 31st March, 2016. Being

aggrieved by the same, the defendants preferred MA No.4 of

2018, which came to be dismissed on 13th January, 2021. Being

aggrieved by the same, judgment debtors filed Miscellaneous

First Appeal No.4025 of 2016 before this Court and the same

was withdrawn on 08th August, 2016. Thereafter, it is argued at

the Bar that, Writ petition No.9026 of 2021 is filed by the

judgment debtors 1 and 2, with respect to the subject matter of

the suit. In the meanwhile, respondent No.1 herein has filed

Execution Petition No.20 of 2009 before the Trial Court and in

the said Execution Proceedings, the decree holder has filed IAs.5

and 7 seeking delivery of the suit schedule property from the

custody of the judgment debtor as well as seeking police help to

complete the proceedings. The said applications were allowed

by the trial Court by the impugned order dated 06th October,

2017 and 25th October, 2018. Being aggrieved by the orders

passed by the trial Court, the judgment debtors have presented

this writ petition.

3. Heard Sri L. Rajanna, learned counsel appearing for the

petitioner and Sri H.B. Chandrashekar, learned counsel

appearing for the respondent.

4. Sri L. Rajanna, learned counsel appearing for the

petitioner drew the attention of the court to the judgment and

decree passed by the trial Court in Original Suit No.312 of 2008

and submitted that the said judgment and decree passed by the

trial Court is an ex-parte order, wherein opportunity of hearing

has not been provided to the defendants. Thereafter, he drew

the attention of the Court to the impugned order passed by the

trial Court in the Execution case No.20 of 2009, and submitted

that on the date of passing of the impugned order, both the

judgment debtor and the learned counsel representing the

judgment debtor were unrepresented and therefore, opportunity

be given to the judgment debtor/petitioners herein to contest

the application on merits. Accordingly, he sought for

interference of this Court in this writ petition.

5. On the other hand, Sri H.B. Chandrashekar, learned

counsel appearing for the respondent No.1 contended that

pursuant to judgment and decree passed by the trial Court in

Original Suit No.312 of 2008, the sale deed has been executed in

favour of Respondent No.1 by registered sale deed dated 27th

August, 2009 and further he submitted that despite the same,

the judgment debtors have not vacated the suit schedule

property. He further contended that the claim made by the

respondent No.1 in the year 2008 is based on the registered

agreement of sale dated 03rd March, 2006, and therefore, sought

for dismissal of the writ petition.

6. In the light of the submission made by the learned

counsel appearing for the parties, I have carefully considered the

writ papers which would substantiate the fact that the judgment

and decree passed by the trial Court in Original Suit No.312 of

2008, in which the defendants have remained absent. The

Miscellaneous Petitions filed by judgment debtors came to be

dismissed. Apart from that the appeal preferred by the

judgment debtors in Miscellaneous No.4 of 2018 before the

Appellate Court came to be dismissed on 13th January, 2021.

The Miscellaneous First Appeal No.4025 of 2016 filed by the

Judgment debtors also came to be dismissed by this Court, by

judgment dated 08th August, 2016. However, it is argued at the

Bar that the judgment debtors 1 and 2 herein have filed writ

petition No.9026 of 2021, which is pending consideration before

this Court. Taking into account the fact that the finding recorded

by the trial Court, as well as, the undisputed fact as reflected in

the order sheet of the trial Court is in the absence of the

judgment debtors, and in that view of the matter, in the ends of

justice and in order to provide a fair opportunity to the judgment

debtors as well as the respondent No.1/plaintiff in Original Suit

No.312 of 2008, I am of the view that the impugned orders be

set aside giving an opportunity to both the parties to argue on

IAs.5 and 7 before the Executing Court without fail on the next

date of hearing and the trial Court is directed to dispose of IAs.5

and 7, within two weeks from the date of receipt of certified copy

of this order. Petition is accordingly disposed of.

Sd/-

JUDGE

lnn