Karnataka High Court
Ganapati S/O Nagesh Palankar vs The Merchants Urban Co-Operative Bank ... on 13 December, 2023
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NC: 2023:KHC-D:14592
WP No. 107359 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
WRIT PETITION NO. 107359 OF 2023 (GM-CPC)
BETWEEN:
GANAPATI S/O. NAGESH PALANKAR,
AGE: 75 YEARS, OCC: BUSINESS,
R/O: GADAG-582101.
...PETITIONER
(BY SRI. DINESH M. KULKARNI, ADVOCATE)
AND:
1. THE MERCHANTS URBAN CO-OPERATIVE
BANK LIMITED,
APMC ROAD, GADAG,
REPRESENTED BY ITS MANAGER,
SRI. JAYASHUBH S/O. SHIVAPPA MANVI,
AGE: 57 YEARS, OCC: BUSINESS,
R/O. GADAG, TQ: GADAG-582101.
2. M/S. BALAJI TRADING COMPANY,
ROHAN
BY ITS PARTNER,
HADIMANI GOVIND S/O. NAGESH PALANKAR,
T
AGE: 60 YEARS, OCC: BUSINESS,
Digitally R/O. NAMA JOSHI ROAD, GADAG-582101.
signed by
ROHAN ...RESPONDENTS
HADIMANI T
(BY SRI. C.S. SHETTAR & SMT. KAVYA C. SHETTAR,
ADVOCATES FOR C/R1; NOTICE TO R2 IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI BY QUASHING THE ORDER ISSUING THE
DELIVERY WARRANT DATED 30/10/2023 PASSED BY THE PRINCIPAL
CIVIL JUDGE, GADAG, IN EX. CASE NO. 49/2015 VIDE ANNEXURE-F-
1 AS NULL AND VOID AND TO QUASH THE ENTIRE PROCEEDINGS IN
EXECUTION CASE EX. CASE NO. 49/2015 PENDING BEFORE
PRINCIPAL CIVIL JUDGE, GADAG AS NOT MAINTAINABLE.
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NC: 2023:KHC-D:14592
WP No. 107359 of 2023
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner is the judgment debtor in Execution
Case No.49/2015 pending on the file of the Prl. Civil Judge
& JMFC., Gadag and respondent No.1 is the decree holder.
Execution petition is filed to execute the following decrees:
Trial Court Appellate Court High Court
No. and Date O.S.No.449/1989 RA.No.1/1995 RSA.No.106/1997
of decree DD:- 29.11.1994 DD:- 28.10.1995 DD:- 26.03.1997
No. and Date FDP.No.4/1997 RA.No.50/1999
of decree DD:- 11.03.1999 DD:- 01.03.2005
2. In the above said decrees, the decree holder
has been permitted to redeem the mortgage and take
possession of the property mortgaged to it. However, the
description of the property is erroneously mentioned in
decree passed in O.S.No.449/1989 and in FDP.No.4/1997.
Hence, the present writ petition is filed contending that
unless the error in decree passed in O.S.No.449/1989 and
FDP.No.4/1997 is rectified, the decree cannot be executed.
NC: 2023:KHC-D:14592
3. The advocate for the Caveator Respondent No.1
submits that he would get the error in the decree passed
in O.S.No.449/1989 and FDP.No.4/1997 corrected and
then execute the decree.
4. Admittedly, the description of the property
mortgaged in favour of caveator respondent No.1 is as
follows:
"Gadag C.T.S. No:1768/4 Area 100 sq. yards tenure
"C" shop building situated the limits of Gadag-Betageri
City Muncipality Council is the suit property.
To, East - Public Road
To, West - Godown of Wadawadagi
To, North - Shop of Manvi
To, South - Shop of Nimbalkar."
5. The decrees should be drawn in respect of the
said property. It is further submitted that Misc.No.2/2019
is pending before the I Addl. Civil Judge and JMFC-I Court,
Gadag which passed the decree in O.S.No.449/1989 and
the same is filed to have the description of the property in
the decree corrected. Hence, the following:
NC: 2023:KHC-D:14592
ORDER
The I Addl. Civil Judge and JMFC-I Court, Gadag is
hereby directed to take up Misc.No.2/2019 on priority and
pass necessary order correcting the description of the
property in the decrees as mentioned in paragraph No.2
(supra) and the advocate for caveator respondent No.1 is
given liberty to move the Court forthwith. Thereafter, the
impugned order passed by the Execution Court shall be
executed.
Sd/-
JUDGE
RH
