Karnataka High Court

Sri C B Narayanaswamy vs Sri Patel Gopal Gowda on 27 July, 2023

Bench: S.R.Krishna Kumar

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                                                 NC: 2023:KHC:26274
                                                    WP No. 467 of 2023




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 27TH DAY OF JULY, 2023

                                       BEFORE
                    THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
                       WRIT PETITION NO.467 OF 2023 (GM-CPC)
             BETWEEN:
             SRI C B NARAYANASWAMY
             S/O MUNISWAMAPPA
             AGED ABOUT 58 YEARS
             R/AT AGRAHARA LAYOUT
             YELAHANKA HOBLI - 560 063.
             BENGALURU NORTH TALUK
                                                          ...PETITIONER
             (BY SRI. NATARAJA B S., ADVOCATE)
             AND:
             SRI PATEL GOPAL GOWDA
             SINCE DEAD BY HIS LRS

             1.   SRI. K. RAJU
                  S/O LATE PATEL GOPAL GOWDA
                  AGED ABOUT 65 YEARS

             2.   SRI.A.G. NAGARAJU
Digitally         S/O LATE PATEL GOPAL GOWDA
signed by
VANDANA S         AGED ABOUT 61 YEARS
Location:
High Court   3.   SRI.A.G. CHANDRASHEKAR
of
Karnataka         S/O LATE PATEL GOPAL GOWDA
                  AGED ABOUT 60 YEARS

             4.   SRI.A.G LOKESH
                  S/O LATE PATEL GOPAL GOWDA
                  AGED ABOUT 58 YEARS

                  SL NO.1 TO 4 ARE R/AT
                  AGRAHARA LAYOUT
                  YELAHANKA HOBLI - 560 063
                  BENGALURU NORTH TALUK.
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                                         NC: 2023:KHC:26274
                                              WP No. 467 of 2023




5.   SRINIVAS
     S/O LATE PATEL GOPAL GOWDA
     AGED ABOUT 32 YEARS
     R/AT NO.20, 1ST CROSS
     5TH MAIN, NEAR SUBRAMANYA TEMPLE
     AGRAHARA LAYOUT
     YELAHANKA HOBLI
     BENGALURU NORTH TALUK - 560 063.
                                                  ...RESPONDENTS
(BY SRI.M.V. MURTHY, ADVOCATE FOR R-5;
    VIDE ORDER DATED 10.01.2023, NOTICE TO
    R-1 TO R-4 IS D/W)

     THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH ANNEXURE-D IN
EX.NO.4/2020 ORDERS PASSED ON 29.11.2022 BY THE PRINCIPAL
SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT AT
BENGALURU.

      THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

                               ORDER

This petition by the decree holder in Ex.No.4/2020 on the file

of the Prl. Senior Civil Judge, Bengaluru Rural District, Bengaluru,

is directed against the impugned order dated 29.11.2022 whereby

the application - I.A.No.1 filed by the impleading applicant to come

on record as additional judgment debtor No.5 was allowed by the

Trial Court.

2. Heard learned counsel for the petitioner and learned

counsel for the respondents and perused the material on record.

NC: 2023:KHC:26274 WP No. 467 of 2023

3. The material on record discloses that the petitioner -

decree holder has instituted the aforesaid execution proceedings

against respondent Nos.1 to 4 - legal representatives of the

judgment debtor and during the pendency of the said proceedings,

respondent No.5 filed the instant application seeking impleadment

as additional Judgment debtor No.5. The said application having

been opposed by the petitioner, the Trial Court proceeded to pass

the impugned order allowing the application by holding as under:

Orders on I.A.No.I filed under Order 1 Rule 10(2) read with Section 151 of C.P.C This instant application is filed by the applicant by name Srinivas praying to permit him to implead as one of the JDR in this execution petition. Since he is the legal heir of deceased Patel Gopal Gowda against whom the judgment and decree is operating.

2. The application is supported with the affidavit duly sworn to by the applicant who contends that the decree holder has filed this present execution petition against the LRs of deceased Patel Gopal Gowda and sought for delivery of possession of the suit schedule property by demolishing standing structure in the petition schedule properties. It is contended that the decree holder has obtained the judgment and decree in his favour in O.S.365/2014 against his father. It is further contended that his father was having two wives. First wife is Papamma and

NC: 2023:KHC:26274 WP No. 467 of 2023

the second wife is Jayamma. The JDRs on record are the children of his father through first wife and the applicant is the only son through second wife. This execution petition is filed after the death of Patel Gopal Gowda against his LRs, intentionally the DHR has not made this applicant as JDR in this case. This applicant has got legal right and interest and also he is the necessary party in this proceedings. That his presence before this court to adjudicate the present execution petition effectually and to settle all the questions involved in this petition is necessary and proper. Without impleading him, the court cannot pass appropriate orders. It is also contended that he has already filed a suit for declaration against the decree holder, which is pending before the II Addl. Senior Civil Judge, Bangalore Rural District, Bangalore in O.S.No.276/2020. Under such circumstances, prays to allow the application and permit the applicant to come on record as decree holder.

3. Per contra, the learned counsel for the decree holder has filed objections to this application contending that the decree holder had filed a suit for the relief of specific performance of contract in O.S.365/14 and this court had decreed the suit on 09.09.2014. Upon the said decree, the sale deed got registered in favour of the decree holder through court commissioner. However, the possession of the suit schedule property was not delivered by the judgment debtor and the judgment debtor expired before filing the present execution petition. No one from the family of Patel Gopal Gowda have admitted the present impleading applicant as their family member. The present

NC: 2023:KHC:26274 WP No. 467 of 2023

applicant is not a party to the original proceedings. Hence he has no locus standi to file the present application. The present impleading applicant has already filed a suit in O.S.276/2020 for declaration of the judgment and decree passed by this court as null and void which is pending before the II Addl. Senior Civil Judge, Bangalore Rural District, Bangalore. Under such circumstances, prays to dismiss the application.

4. Heard. Perused the records.

5. The points that arise for my consideration are:

1.Whether the proposed applicant is a proper or necessary party to this execution petition?

2. What order?

6. My findings are as under:

Point No.1: In the Affirmative Point No.2: As per final order for the following:

REASONS

7. Point No.1: Both the learned counsels for applicant and opponent/decree holder have reiterated what is stated by them in their respective application and objections thereto and they have canvassed their arguments.

8. I have gone through the records of the case and on going through the records of the case, the learned counsel for the impleading applicant has filed a memo along with the copy of the orders passed on I.A.Nos.I and II by the learned II Addl. Senior Civil Judge, Bangalore Rural District, Bangalroe in O.S.276/2020 which is a suit filed by

NC: 2023:KHC:26274 WP No. 467 of 2023

this applicant against Narayana Swamy i.e., the DHR herein. In the said suit, the contention of the applicant herein is that he is the absolute owner in possession of the property by virtue of a gift deed executed by his father late Patel Gopal Gowda on 14.11.2011. Patel Gopal Gowda is none other than the original defendant against whom the decree was passed. When the decree holder was very well aware of the fact that this applicant is claiming that he is the son of Patel Gopal Gowda, there was no occasion for him not to implead him as one of the judgment debtors in this case. It is pertinent to note that as per Section 47 of C.P.C, all questions arising between the parties to the execution petition in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree. Here, the applicant is claiming to be the representative of original defendant Patel Gopal Gowda. Such being the case, whatever claim that is raised by the applicant requires to be adjudicated in this execution petition itself for which this applicant requires to be impleaded in this case in the capacity of legal representative of the deceased original defendant. No doubt in normal circumstances, the application under Order 1 Rule 10(2) of C.P.C cannot be entertained in execution petition. However in this case, when the decree holder has himself impleaded all the legal heirs of original defendant Patel Gopal Gowda, there was no reason to give up this present applicant, more so, when he was very well aware of his presence and claim by the applicant in suit

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O..260/2020. Considering all these facts, I have no hesitation to hold point No.1 in the Affirmative.

9. Point No.2: As per the following: