Chandra Shekar S/O Late Bheemappa vs S Govinda S/O Late S Bheemappa
2023 Latest Caselaw 5205 Kant

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                                                                  NC: 2023:KHC-D:8256
                                                                    CRP No. 100047 of 2022




                                          IN THE HIGH COURT OF KARNATAKA

                                                    DHARWAD BENCH

                                      DATED THIS THE 3RD DAY OF AUGUST, 2023

                                                         BEFORE
                                       THE HON'BLE MR JUSTICE C.M. POONACHA
                                   CIVIL REVISION PETITION NO. 100047 OF 2022 (-)

                              BETWEEN:

                                    S. CHANDRA SHEKAR S/O LATE S. BHEEMAPPA,
                                    AGE. 59 YEARS, OCC. HOTELIER,
                                    THROUGH HIS GPA HOLDER,
                                    BHARAT KUMAR S/O. S. CHANDRA SHEKAR
                                    AGE: 32 YEARS, OCC: ASSISTANT TEACHER,
                                    R/O. OLD W. NO. 6, PRESENT WARD NO. 22,
                                    BADANHATTI ROAD, KURUGODU -583116,
                                    DIST. BALLARI.
                                                                                 ...PETITIONER

                              (BY SRI. C. S. SHETTAR, ADVOCATE)
           Digitally signed
           by                 AND:
           SHIVAKUMAR
SHIVAKUMAR HIREMATH
HIREMATH
           Date:
           2023.08.09         1.    S. GOVINDA S/O. LATE S. BHEEMAPPA,
           11:56:29 +0530
                                    AGE. 52 YEARS, OCC. PRIVATE EMPLOYEE,
                                    R/O. YEMMIGANUR TOWN-518360,
                                    DIST.KURNOOR, ANDRA PRADESH.

                              2.    SHREEKANTH NAIK S/O. T. RATHNAKAR,
                                    AGE. 59 YEARS, OCC. AGRICULTURE,
                                    R/O. RAGHAVENDRA COMPLEX,
                                    KURUGODU-583116,
                                    TQ./DIST. BALLARI.

                                                                               ...RESPONDENTS

                              (BY SRI. MALLIKARJUN SWAMY B. HIREMATH, ADVOCATE FOR R1;
                                  NOTICE TO R2 IS SERVED)
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                                          NC: 2023:KHC-D:8256
                                            CRP No. 100047 of 2022




      THIS CIVIL REVISION PETIION IS FILED UNDER SEC.115 OF
CPC, PRAYING TO, A) SET ASIDE THE ORDER DATED 25.01.2022 AT
ANNEXURE-K PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE
AND JUDICIAL MAGISTRATE FIRST CLASS BALLARI IN CIVIL MISC
PETITION NO.07/2015 B) CONSEQUENTLY THE PETITION IN CIVIL
MISC NO.07/2015 FILED BEFORE PRINCIPAL CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS AT BALLARI BE DISMISSED.

     THIS CIVIL REVISION PETITION, COMING ON                      FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

                               ORDER

The present petition is filed to set aside the order

dated 25.01.2022 passed in Civil Miscellaneous No.7/2015

by the Principal Civil Judge and JMFC Court, Ballari,

whereunder, the petition filed by the respondent No.1

under Order IX Rule 13 read with Section 151 of CPC, has

been allowed and the ex-parte decree dated 24.02.2006

passed in O.S.No.44/2005 is set aside.

2. The peculiar facts leading to the present

petition are that, the respondent No.2 filed

O.S.No.44/2005 against the respondent No.1 for specific

performance of the contract dated 24.02.2006, the

petitioner was not arrayed as a party to the said suit.

NC: 2023:KHC-D:8256 CRP No. 100047 of 2022

3. It is the contention of the petitioner that, the

respondent Nos.1 and 2 colluded with one another, due to

which the respondent No.1 who has arrayed as defendant

in the suit was placed ex-parte, consequent to which the

suit was decreed by the trial Court. Thereafter, the

respondent No.2 who sought to execute the decree, filed

Execution Petition No.135/2006 and even in the said

proceedings the respondent No.1 did not enter appearance

and was served by paper publication.

4. It is the further contention of the petitioner

that, having become aware of the suit and the execution

petition, the petitioner filed I.A.No.2 in Execution Petition

No.135/2006 under Order 21 Rule 97 to 101 read with

Section 47, 94 and 151 of CPC, which application was

allowed by the executing Court and the petitioner was

permitted to participate in the execution proceedings.

Consequent to the same, a compromise petition was filed

which was signed by the petitioner who was the applicant

NC: 2023:KHC-D:8256 CRP No. 100047 of 2022

in the I.A. and the decree holder and the execution

petition was closed.

5. Thereafter, after a lapse of more than nine

years, the first respondent filed Civil Miscellaneous

No.7/2015 under Order IX Rule 13 of CPC, seeking to set

aside the ex-parte decree and to restore the suit. The said

petition was resisted by the respondent No.2 and the

petitioner who arrayed as respondent Nos.1 and 2,

respectively in the said proceedings. The respondent No.1

was examined as P.W.1 and Ex.P.1 to P.12 were marked in

the evidence. The power of attorney holder of the

petitioner was examined as R.W.1 and Ex.R.1 to R.41

were marked in the evidence. The trial Court upon

appreciation of the oral and documentary evidence on

record, by its order dated 25.01.2022 allowed the petition

and passed the following order:

"The petition filed under Order 9 Rule 13 R/w. Section 151 of CPC is allowed on cost of Rs.2,000/-.

Consequently, exparte decree passed in O.S.No.44/2005 dated 24.02.2006 is hereby set aside and the defendant in the said suit is relegated

NC: 2023:KHC-D:8256 CRP No. 100047 of 2022

to the position at which the defendant was, when the defendant was proceeded against exparte.

The parties in O.S.No.44/2005 are directed to appear before the court without excepting notice to proceed with the suit on 07.02.2022.

It is further directed to the parties in O.S.No.44/2005 to co-operate in disposing of the suit within six months of this order.

Office is hereby directed to put up the O.S.No.44/2005 on board on 07.02.2022 to proceed with the suit."

6. Being aggrieved by the said order, the present

petition is filed.

7. Learned counsel for the petitioner vehemently

contended that, consequent to the decree passed in the

suit, the execution petition having been preferred by the

respondent No.1 and consequent to the compromise

entered into between the parties, the execution petition

having been closed, the petitioner has practically became

the owner of the property and hence, the decree ought not

to have been set aside. Hence he seeks for allowing the

present petition and granting of the reliefs sought for.

NC: 2023:KHC-D:8256 CRP No. 100047 of 2022

8. Per contra, learned counsel for the respondent

No.2 who was applicant in Civil Miscellaneous No.7/2015

justifies the impugned order passed by the trial Court and

submits that, the petitioner is not a party to the suit and

hence, he cannot object to the decree being set aside.

9. He further submits that, the petitioner and the

respondent No.1 have colluded with one another and

played fraud and the respondent No.2 having learnt of the

fraud played by the petitioner, has initiated the

proceedings to contest the suit and all aspects of the

matter having been considered by the trial Court, the

impugned order passed is just and proper and same is not

liable to be interfered with in the present petition.

10. I have considered the submissions of the

learned counsels from both sides and perused the material

available on record. The question that arise for

consideration is;

"Whether the order passed by the trial Court is liable to be interfered with?"

NC: 2023:KHC-D:8256 CRP No. 100047 of 2022

11. It is forthcoming from the order passed by the

trial Court that, after appreciation of the oral and

documentary evidence on record and noticing the relevant

statutory provisions as well as the legal position, the trial

Court has rightly recorded a finding that the only aspect

that was required to be considered in the proceedings

under Order IX Rule 13 of CPC is to whether necessary

grounds has been made to set aside the ex-parte decree.

12. The trial Court also noticed the Judgment of the

Hon'ble Apex Court passed in the case of Vijay Singh Vs.

Shanti Devi and another1, wherein, the Hon'ble

Supreme Court has categorically held that, a mere fact

that the ex-parte decree has been executed is not a

ground to disentitle the party to take recourse to the

proceeding under Order IX Rule 13 of CPC, to set aside ex-

parte decree. Further the trial Court having noticed the

relevant factual matrix, has recorded a categorical finding

that, the petitioner has placed on record that he was not

(2017) SCCR-820

NC: 2023:KHC-D:8256 CRP No. 100047 of 2022

aware of the suit and has made out a valid ground to set

aside the ex-parte decree. The said finding recorded by

the trial Court is just and proper and not liable to be

interfered with in the present petition.

13. The contention of the petitioner that, he has

practically became the owner of the suit property by virtue

of the joint compromise petition filed between him and the

respondent No.1 in Execution Petition No.135/2006 is ex-

facie liable to be rejected inasmuch as by virtue of the

compromise petition filed to which admittedly, the

respondent No.2 who was the defendant in the suit is not

a party, cannot modify the decree passed in the suit.

Moreover, pursuant to the said compromise petition filed,

the execution petitions have been closed. As rightly

noticed by the executing Court, merely because the

petitioner and the respondent No.1 has filed the

compromise petition, the same cannot take away the

vested right that may be available with respondent No.2.

NC: 2023:KHC-D:8256 CRP No. 100047 of 2022

14. In view of the aforementioned, the petitioner

has failed in demonstrating that the order passed by the

trial Court is by exercising a jurisdiction not vested or has

failed to exercise the jurisdiction so vested, or acted in

exercise of its jurisdiction illegally or with material

irregularity.

15. Having regard to the aforementioned, the

question framed for consideration is answered in the

negative.

16. Accordingly, the above petition is dismissed as

being devoid of merits.

No costs.

(Sd/-) JUDGE

Svh/-