Karnataka High Court
Maqsood Ali vs Vinayak Rao And Ors on 18 January, 2023
Bench: Anant Ramanath Hegde
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
W.P.NO.202553/2021 (GM-CPC)
BETWEEN:
MAQSOOD ALI S/O MAHABOOB ALI,
AGE: MAJOR (69 YRS)
OCC: AGRICULTURE,
R/O: BIDAR
THROUGH HIS GPA HOLDER
MAHABOOB ALI S/O WAHED ALI
AGE: MAJOR, (90 YRS)
OCC: AGRICULTURE,
R/O: BIDAR,
TQ.DIST.BIDAR-585401.
.... PETITIONER
(BY SRI S.S. SAJJANSHETTY, ADVOCATE)
AND:
1. VINAYAK RAO S/O GYAN RAO
AGE: MAJOR OCC: PENSIONER,
R/O VILLAGE JANWADA NOW
RESIDING AT NANDED
THROUGH POWER OF ATTORNEY
GOVIND RAO S/O VINAYAKRAO
AGE: MAJOR, OCC: EMPLOYEE IN LIC,
AURANGABAD
MAHARASTRA STATE
2. SONABAI W/O LATE MANOHAR RAO
AGE: MAJOR, OCC: AGRICULTURE,
2
R/O JANAWADA VILLAGE,
TQ. DIST. BIDAR-585401.
3. KAMALABAI D/O LATE MANOHAR RAO
AGE: MAJOR, OCC: HOUSEHOLD,
R/O: BIDAR,
TQ. DIST. BIDAR-585401.
4. SHARADABAI D/O LATE MANOHAR RAO
AGE: MAJOR, OCC: HOUSEHOLD
R/O: BIDAR,
TQ. DIST.BIDAR-585401.
5. LALITABI D/O LATE MANOHAR RAO
AGE: MAJOR, OCC: HOUSEHOLD,
R/O: BIDAR,
TQ. DIST.BIDAR-585401.
... RESPONDENTS
(BY SRI SACHIN M. MAHAJAN, ADVOCATE FOR R1;
V/O DATED 12.8.22 R2 NOTICE TO R5 IS DISPENSED
WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT OR ORDER IN THE NATURE OF CERTIORARI QUASHING
THE IMPUGNED ORDER DATED 8.10.2020 PASSED ON IA NO.1
BY THE RESPONDENT NO.1 U/O.41 RULE 5 R/w SEC. 151 OF
CPC BY THE LEARNED TRIAL COURT I ADDL. CIVIL JUDGE AND
JMFC BIDAR IN MISC NO.28/2019 FILED U/O.9 RULE 13 CPC
R/W SEC.151 C.P.C. VIDE ANNEXURE-M AND CONSEQUENT
ORDER DATED 17.4.2021 PASSED ON IA NO.4 EXTENDING
STAY ORDER VIDE ANNEXURE-P AND ETC.,
3
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:-
ORDER
Heard the learned counsel for the petitioner and the
learned counsel for the respondents.
02. In this case the petitioner is questioning the
order passed on I.A.No.1 in Civil Misc.No.28/2019 on the
file of I Additional Civil Judge, at Bidar. In terms of the
impugned order the Trial Court has stayed the operation
and execution of the judgment and decree in
O.S.No.291/1993.
03. The learned counsel for the petitioner would
submit that the respondents in this case have filed Civil
Misc. under Order IX Rule 13 to set-aside the decree
passed in O.S.No.291/1993. It is his contention that the
Civil Misc. itself is not maintainable, as the petitioner in
O.S.No.291/1993 has participated in the proceedings, filed
written statement and he was not placed ex-parte.
04. The learned counsel for the respondents would
submit that the petitioner in O.S.No.291/1993 who was
one of the defendants in the said suit, though he filed
written statement, thereafter he could not participate in
the matter and did not cross-examine petitioner and did
not lead evidence. As such, it is practically an ex-parte
decree and application under Order IX Rule 13 of Code of
Civil Procedure is maintainable, in the submission.
05. This court has considered the contentions and
perused the impugned order. In terms of the impugned
order, the Trial Court has exercised the power under
Order XLI 41 Rule 5 read with Section 151 of Code of Civil
Procedure.
06. It is apparent that provisions of Order XLI
Rule 5 of the Code of Civil Procedure could not have been
applied by the Trial Court, as the Trial Court was not
exercising the powers conferred on the Appellate Court.
However, it is noticed that the Trial Court has also invoked
Section 151 of Code of Civil Procedure.
07. This Court does not find any infirmity that the
power of the Trial Court in exercising the power under
Section 151 of Code of Civil Procedure to stay the
operation and execution of the judgment and decree,
which according to the contesting respondent is the ex-
party decree.
08. It is also noticed that the Miscellaneous
Petition No.28/2019 is still pending consideration before
the Trial Court. Under these circumstances, this court
deems appropriate a direction should be issued to the Trial
Court to consider the said petition filed under Order IX
Rule 13 of the Code of Civil Procedure on its merit and
pass an appropriate orders within a period of four months
from the date of receipt of copy of this order.
09. The parties to the said proceedings shall
cooperate with the Trial Court for expeditious disposal of
the said petition.
10. With these observations, the writ petition is
disposed of.
11. In view of disposal of the main petition, the
pending I.As. do not survive for consideration, hence the
same are dismissed.
Sd/-
JUDGE
KJJ/sn
