Smt Indrani vs Sri Beeraiah
2022 Latest Caselaw 7455 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 25TH DAY OF MAY, 2022

                       BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

        WRIT PETITION NO.5290 OF 2022 (GM-CPC)

BETWEEN:

1 . SMT. INDRANI
    W/O. SRI.J. SHANKARAN
    AGED ABOUT 53 YEARS
    R/AT 1143/71A
    5TH MAIN, 5TH CROSS
    S.J.A. ROAD, VIDYARANYAPURAM
    MYSORE - 570 008
                                        ...PETITIONER
(BY SRI.NANDISH GOWDA G.B., ADVOCATE)

AND

1.   SRI BEERAIAH
     S/O. LATE SRI. THAMMANNA
     AGED ABOUT 80 YEARS

2.   SRI. PAPAIAH
     S/O. SRI. BEERAIAH
     AGED ABOUT 54 YEARS

3.   SRI. ESHWARA
     S/O. SRI BEERAIAH
     AGED ABOUT 48 YEARS
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ALL ARE R/AT SARKARI
UTTARAHALLI VILLAGE
VARUNA HOBLI
MYSORE TALUK 570 010
                                      .....RESPONDENTS

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT IN THE NATURE OF MANDAMUS DIRECTING THE 2ND
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSORE TO
DISPOSE OF THE APPLICATION FILED BY THE PETITIONER
UNDER ORDER XXI RULE 32 R/W. SECTION 151 OF CPC IN
EX.CASE   NO.732/2017     AT    THE   EARLIEST    VIDE
ANNEXURE-D AND ETC.,


     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:


                        ORDER

The captioned Writ Petition is filed by the

petitioner-decree holder seeking writ in the nature of

mandamus to direct the Executing Court to decide the

application filed under provisions of order XXI Rule 32

read with Section 151 of CPC.

2. The facts leading to the case are as under;

      The       petitioner   instituted        a        suit    in

O.S.No.530/2014         seeking      relief        of     specific

performance of contract. The said application was

contested by the respondents/judgment debtors. On

contest, the Trial Court by judgment and decree dated

30.08.2017 decreed the suit and thereby granted

relief of specific performance of contract. Pursuant to

the decree, the present petitioner initiated the

execution proceedings in E.P.No.732/2017. The

petitioner claims that the Executing Court appointed a

Commissioner and sale deed was executed by the

Court Commissioner. Pursuant to securing sale deed

through due process of law, the petitioner has filed an

application under Order XXI Rule 32 read with Section

151 CPC alleging that there was a violation of decree

passed in O.S.No.530/2014.

3. The captioned Writ Petition is filed seeking

a direction at the hands of this Court to direct the

Executing Court to decide the application filed under

Order XXI Rule 32 read with Section 151 CPC. Though

this Court while exercising jurisdiction under Article

227 of the Constitution of India has to be cautious

while issuing mandamus, but the present set of facts

could warrants a direction at the hands of this Court.

The petitioner, who is a decree holder has succeeded

before the Court and has benefit of decree for specific

performance. If the judgment and decree passed in

O.S.No.530/2014 has attained finality, the

petitioner/decree holder is entitled to enjoy the fruits

of the decree. Alleging disobedience an application is

filed on 20.01.2022. The material on record reveals

that the respondents/judgment debtors have not

contested the application by filing objections. If

application is filed alleging disobedience, the Court is

bound to hold an enquiry and pass appropriate orders

on the said application, which is not done in the

present case on hand.

4. In the facts and circumstances of the case,

I pass the following:

ORDER

The Writ Petition is allowed in part.

The learned Judge is directed to expeditiously

decide the application in accordance with law after

affording an opportunity to the respondents/judgment

debtors.

Sd/-

JUDGE

KA