Karnataka High Court
Sri Vijay Kumar vs Sri Hanumaiah on 1 August, 2023
Bench: B.M.Shyam Prasad
-1-
NC: 2023:KHC:26730
WP No. 17477 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 17477 OF 2018 (GM-CPC)
BETWEEN:
SRI VIJAY KUMAR
S/O. LATE. C. PUTTARAMU,
AGED ABOUT 27 YEARS,
RESIDING AT, NO-AREKALLUDODDI VILLAGE,
HAMLET OF MARALINGA VILLAGE,
MADDUR TALUK,
MANDYA DISTRICT - 571419.
...PETITIONER
(BY SRI. N. SHANTKUMAR., ADVOCATE)
AND:
Digitally
signed by
NARASIMHA 1. SRI HANUMAIAH
MURTHY S/O. LATE. MOODALAGIRIGOWDA,
VANAMALA
Location: AGED ABOUT 53 YEARS,
HIGH RESIDING AT, NO- BIDARAHALLI VILLAGE,
COURT OF
KARNATAKA C.A. KAERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571419.
2. SRI. RAMACHANDRA
S/O. LATE. CHANNEGOWDA,
AGED ABOUT 73 YEARS,
RESIDINGA AT AREKADODDI VILLAGE,
-2-
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KOPPA HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571419.
...RESPONDENTS
(R1 AND R2 ARE SERVED)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO-SET ASIDE THE
ORDER ON I.A.1, DATED 16.09.2017 PASED BY THE
PRINCIPAL CIVIL JUDGE AT MADDUR IN
EX.NO.11/2013, PRODUCED AT ANNEXURE-F, DIRECT
THE EXECUTING COURT TO HOLD ENQUIRY ON THE
APPLICATION FILED BY THE PETITIONER;DIRECT THE
EXECUTING COURT TO HOLD THE EX.NO.11/2013,
TILL THE PARTITION AND SEPERATE POSSESSION IS
COMPLETED.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The petitioner has filed an application in
Ex.Case No.11/2023 to hold an enquiry on his
application before executing the decree for specific
performance in O.S.No.297/2010 on the file of the
Principal Civil Judge and JMFC, Maddur (the civil
Court which is also 'the executing Court' and is
referred to accordingly]. The executing Court has
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WP No. 17477 of 2018
rejected this application, which is filed under Section
151 of the Code of Civil Procedure, 1908, opining that
it is only intended to deny the decree holder the
benefits of the decree for specific performance. The
executing Court has also opined that the petitioner
has not prosecuted this application. It is seen from
the further orders in the execution case that the
decree holder is permitted to deposit a sum of
Rs.1,00,000/- and a Court Commissioner is
appointed to execute the sale deed.
2. However, Sri. N.Shantkumar, the learned
counsel for the petitioner, submits that though
warrant is issued, his instructions are that the sale
deed is not yet executed. As the respondents have
remained absent, this assertion and the
circumstances that are canvassed as against the
impugned order remain unopposed. The merits of the
executing Court's impugned order are examined in
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WP No. 17477 of 2018
the light of the following circumstances, which are
highlighted by Sri. N.Shantkumar;
2(i). The first respondent's suit in
O.S.No.297/2010 is against the second respondent
for specific performance of the agreement dated
17.07.2007 [sale agreement] allegedly executed by the
second respondent in his favour. This suit is decreed
on 20.11.2012. But both the institution of the
aforesaid suit and the decree is notwithstanding the
pending earlier suit for partition amongst the family
members of the second respondent, including the
petitioner, in O.S. No.164/2002 which is decreed on
31.10.2011.
2(ii). The property which is the subject matter
of the suit in O.S. No.297/2010 for specific
performance is also one of the properties in the suit
for partition in O.S. No.164/2002. The petitioner,
who is the second respondent's younger brother's
son, would be entitled, along with his family
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WP No. 17477 of 2018
members, for a certain share in the subject land viz.,
the land measuring 4 acres 7 guntas in Sy.
No.323/1-p2 of Maraliga Village, Koppa Hobli,
Maddur Taluk in terms of the decree in
O.S. No.164/2002.
2(iii). The Judgment dated 31.10.2011 in
O.S. No.164/2002 is carried in appeal in R.A.
No.205/2011 which is disposed of on 12.07.2017
restricting the plaintiff's share in the suit for partition
and with the resultant enlargement of the share for
the petitioner. The decree in O.S. No.297/2010 is for
specific performance and there is no relief sought for
delivery of possession and in fact, on perusal of the
Judgment dated 20.11.2012 in O.S. No.297/2010,
this Court must observe that the first respondent is
silent about the delivery of possession.
3. These circumstances could command
considerable right in the petitioner and if there is to
be execution of the sale deed in specific performance
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WP No. 17477 of 2018
based on an earlier judgment and decree, this Court
is of the considered view that the application under
the provisions of Order XXI Rules 97-100 of CPC
would be well maintained. The executing Court could
not have rejected the application as one filed only
under Section 151 of CPC. Further, there is
considerable force in the submissions by
Sri. N. Shantkumar that the executing Court's
opinion that the petitioner has not prosecuted the
application is not justified inasmuch as in none of
the orders on the previous dates of hearing, his
absence is recorded. In the aforesaid circumstances,
the following:
ORDER
The writ petition is allowed,
quashing the order dated 16.09.2017 on
I.A. No.I in Ex No.11/2013 on the file of
the Principal Civil Judge, Maddur
restoring the petitioner's application for
reconsideration before the executing
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Court. The civil Court shall consider the
application in accordance with law.
SD/-
JUDGE
RB, AN/-
