Karnataka High Court
Sharada W/O Gadigeppa Walikar @ ... vs The Asst. Commissioner And Ors on 28 March, 2022
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28 TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
WRIT PETITION NO.200691 OF 2022 (GM-CPC)
BETWEEN:
SHARADA W/O GADIGEPPA WALIKAR @ NAIKODI
AGE: 46 YEARS, OCC: HOUSEHOLD & COOLIE
R/O. VIJAYAPURA NOW AT MUDDEBIHAL
... PETITIONER
(BY SRI HARSHAVARDHAN R. MALIPATIL, ADVOCATE)
AND:
1. THE ASST. COMMISSIONER
VIJAYAPURA - 586101
2. THE CHAIRMAN A.P.M.C.
MUDDEBIHAL - 586212
3. THE SECRETARY, A.P.M.C. TALIKOTI
TQ: MUDDEBIHAL - 586212
... RESPONDENTS
(BY SRI VIRANAGOUDA M. BIRADAR, AGA FOR R1;
SRI MALLIKARJUN C. BASAREDDY,
ADVOCATE FOR R2 & R3)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, SEEKING
CERTAIN RELIEFS.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Sri Harshavardhan R. Malipatil, learned counsel for
petitioner and learned Additional Government Advocate for
respondent No.1 have appeared in person.
2. Though the matter is listed for preliminary
hearing, with the consent of learned counsel appearing for
the parties, the matter is taken up for final hearing.
3. It is stated that the land of the family of the
petitioner bearing Sy.No.97 measuring 22 acres 29 guntas
was acquired by the respondent - State for the purpose of
APMC Cattle Market by notification in the year 1982. The
compensation in respect of the said land was determined
by the Reference Court in LAC No.38/2001 which has
attained finality after a prolonged litigation before the
higher Courts. It is also stated that the share of all the
claimants in the said LAC was determined by the Reference
Court itself and it was held that the petitioner is entitled to
4/9th share.
As such, the petitioner filed an execution petition in
E.P.No.25/2005 for execution of the said award in LAC in
respect of her share. The judgment debtors filed their
objections and contested the execution petition for several
years.
It is stated that one Bhairav S/o. Ramesh Oswal @
Rathod filed an application in I.A.No.5 under Order 21 Rule
11 of CPC contending that the petitioner herein has
assigned the decree/award in LAC No.38/2001 and
therefore, she is not entitled for prosecuting the present
execution petition. The said application came to be
dismissed since the applicant did not produce any such
document for assignment of decree.
When the things stood thus, another application of
similar nature is filed by the applicant - Bhairav Oswal in
I.A.No.6 under Order 21 Rule 16 of CPC, contending that
there was an agreement/assignment in respect of award in
LAC.
During the pendency of the said application, the
respondent informed that the compensation in partial
satisfaction of the said award in the said LAC has been
deposited in the Execution Petition and immediately
thereafter, petitioner has filed necessary application in
I.A.No.9 dated 09.04.2021 seeking for release of the said
amount insofar as her share is concerned i.e., 4/9th for
which no objections are filed by the judgment debtors.
However, the executing Court has not passed any order on
I.A.No.9.
Hence, the petitioner is before this Court seeking a
writ of mandamus directing the executing Court to
consider the application (I.A.No.9) for release of amount in
deposit and pass appropriate orders.
4. Counsel Sri Harshavardhan R. Malipatil for
petitioner submits that the application for release of
amount has been filed by the petitioner on 09.04.2021 and
more than 10 months have been lapsed, till today, the
same has not been considered by the executing Court,
even there are no objections filed by the judgment
debtors.
Next, he submitted that the petitioner is suffering
from cervical cancer and is in urgent need of money and
she is not in a position to meet her medical emergency
even when the amount for which she is entitled is
deposited in the Court.
Further, he submitted that the claims of the third
parties that too based on an alleged agreement of
assignment cannot be adjudicated upon in the execution
petition. Therefore, he submits that a direction may be
issued to the executing Court to consider the application
(I.A.No.9) at the earliest and pass appropriate orders on
the said application.
5. Learned Additional Government Advocate for
respondent No.1 and learned counsel for respondents 2
and 3 submit that an appropriate order may be passed.
6. Heard and perused the writ papers with care.
7. The short point that arises for consideration is,
whether the Court is justified in not passing any order on
I.A.No.9?
8. It is not in dispute that the petitioner has made
an application in I.A.No.9 for release of amount in deposit
on certain grounds.
I have perused the application. The same is
produced at Annexure-F. It is noted that the application
has been filed on 09.04.2021. We are now in the month of
March, 2022. So far, the application has not been
considered by the executing Court.
Therefore, in the interest of justice, it would be
appropriate for this Court to invoke the discretion under
Articles 226 and 227 of the Constitution of India directing
the executing Court to consider the application (I.A.No.9)
and pass suitable orders thereon within four weeks from
the date of receipt of a certified copy of this order.
Accordingly, the writ petition is disposed off.
Sd/-
JUDGE
Srt
