Karnataka High Court
H N Kirankumar vs Smt Sundaramma on 17 March, 2023
Bench: S.Sunil Dutt Yadav
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RP No. 48 of 2020 IN
W.P NO. 17441/2015 AND W. P Nos. 22961-962/2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
REVIEW PETITION NO. 48 OF 2020
IN
WRIT PETITION NO. 17441/2015 AND WRIT PETITION Nos.
22961-962/2015 (GM-CPC)
BETWEEN:
1. H N KIRANKUMAR
S/O LATE H N NANJUNDASWAMY
AGED ABOUT 35 YEARS,
R/O NO.5-39
NARAYANASWAMY TEMPLE ROAD,
KOLLEGAL TOWN
CHAMARAJANAGAR DISTRICT-571440
...PETITIONER
Digitally
signed by (BY SRI. D S HOSMATH, ADVOCATE)
VIJAYA P
Location:
HIGH COURT AND:
OF
KARNATAKA
1. SMT SUNDARAMMA
W/O LATE H M NATARAJAPPA
AGED ABOUT 85 YEARS,
2. SMT NIRMALA
W/O H MADHUSUDHAN
D/O LATE H M NATARAJAPPA
AGED ABOUT 45 YEARS,
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RP No. 48 of 2020 IN
W.P NO. 17441/2015 AND W. P Nos. 22961-962/2015
3. SMT PRAMILA
W/O R MANJUNATH
D/O LATE H M NATARAJAPPA
AGED ABOUT 42 YEARS,
RESPONDENT NOS. 1 TO 3 ARE
R/O HARIPRIYA, 9TH CROSS
BASAVESHWARANAGAR, KOLLEGAL TOWN
CHAMARAJANAGAR DISTRICT-571440.
4. SMT KAMALAMMA
W/O LATE H M NATARAJAPPA
AGED ABOUT 81 YEARS,
R/O NO.762/1
RAMANUJA ROAD 7TH CROSS
OLD AGRAHARA
MYSURU-570004
5. H N NANJUNDASWAMY
S/O SMT KAMALAMMA
SINCE DECEASED BY HIS
LEGAL REPRESENTATIVES
SMT NAGARATHNA
SINCE DEAD REPRESENTED BY HER
LEGAL RESPRESENTATIVES (A)
5A. SMT REKHA DEVI
W/O UMESH
AGE 37 YEARS
D/O LATE H N NANJUNDASWAMY
R/O NO.40 2ND STAGE SOUTH
NEAR KEB OFFICE, BHOGADI
MYSURU-560026.
5B. H N RAVIKUMAR
S/O LATE H N NANJUNDASWAMY
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RP No. 48 of 2020 IN
W.P NO. 17441/2015 AND W. P Nos. 22961-962/2015
AGED ABOUT 37 YEARS
R/O NO.5/39
NARAYANASWAMY TEMPLE ROAD,
KOLLEGALA TOWN
CHAMARAJANAGARA DISTRICT-571440
6. SMT LALITHA
W/O NAGARAJAPPA
D/O KAMALAMMA
AGED ABOUT 59 YEARS,
R/O BALLAGERE VILLAGE,
POORIGALLI PO MALAVALLI TALUK
MANDYA DISTRICT-571463.
7. SMT SHASHIKALA
W/O LATE NAGARAJAPPA
SINCE DEAD BY HER LEGAL REPRESENTATIVES
7A. S.N. RAJENDRA
S/O. LATE NAGARAJAPPA
AGED ABOUT 33 YEARS
R/O. NO. 462, 1ST FLOOR, 4TH B CROSS,
7TH MAIN, HAMPINAGAR (RPC LAYOUT)
VIJAYANAGAR 2ND STAGE,
BENGALURU 560040.
7B. SMT. RAJESHWARI
W/O M PRAKASH
D/O LATE NAGARAJAPPA
AGED ABOUT 30 YEARS,
R/O NO.66 G FLAT NO.4
KRISNAPPA APARTMENT
22ND CROSS IST MAIN
BEHIND STANDARD ENGLISH SCHOOL
MARENAHALLI VIJAYANAGAR
BENGALURU-560040
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RP No. 48 of 2020 IN
W.P NO. 17441/2015 AND W. P Nos. 22961-962/2015
8. SMT R VASANTHA
W/O SHIVAKUMAR
D/O LATE NAGARAJAPPA
AGED ABOUT 54 YEARS
R/O NO.687, E BLOCK
11TH MAIN, 3RD CROSS, J P NAGAR
MYSURU-570031
9. N MAHADEVASHANKAR
SINCE DECEASED BY LEGAL REPRESENTATIVES
9A. SMT MAMATHA
D/O LATE MAHADEVASHANKAR
AGED ABOUT 35 YEARS,
9B. SOMAPRABHA
MINOR
REPRESENTED BY NATURAL GUARDIAN AND MOTHER
SMT MAMATHA
RESPONDENTS 9A AND 9B ARE
CARE OF SUJAYAMMA
B R HILLS ROAD,
CHAMARAJANAGAR TOWN AND POST -571313
...RESPONDENTS
(BY SRI. Y.K.NARAYANA SHARMA, ADVOCATE FOR R2 & R3)
THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE
1(A) R/W SECTION 114 OF CPC, PRAYING TO REVIEW THE
ORDER DATED 19/11/2019 PASSED IN WP NO. 17441/2015
AND WP NO. 22961-962/2015(GM-CPC)
THIS PETITION, COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
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RP No. 48 of 2020 IN
W.P NO. 17441/2015 AND W. P Nos. 22961-962/2015
ORDER
Review petition is taken on its merits with the
consent of both parties.
2. Parties are referred to as per their rankings in
the writ proceedings for the convenience of the parties.
3. Petitioners who are decree holders in F.D.P.No.
1/2018 had filed a writ petition seeking for setting aside
the order of 24.01.2015 passed on I.A. Nos.12, 13 and 14.
I.A.12 which was filed seeking to amend the final decree
petition schedule, I.A.13 was filed seeking to amend the
plaint schedule and I.A.14 was filed seeking to amend the
preliminary decree schedule. In the order passed in the
writ proceedings, the Court noticed that the applications
were filed to incorporate the measurement with respect to
the property bearing No.5/39. The Court noticed the
contention that when the decree was sought to be
executed in final decree proceedings, a Commissioner was
appointed and the Commissioner had furnished a report
RP No. 48 of 2020 IN
W.P NO. 17441/2015 AND W. P Nos. 22961-962/2015
stating that he was not in a position to measure the
portion of the property described as property No.5/39 as
there was objections for measurement. The Court noticed
that there was no dispute as regards to the existence of
the said property as the same was enumerated in the
schedule.
4. The Court relied on the judgment of the Apex
Court in the case of Peethani Suryanarayana and
another vs. Repaka Venkata Ramana Kishore and
others - AIR 2009 SC 2141 and taking note of the law
laid down by the Apex Court in paragraph Nos. 14 and 15
and that the only amendment sought to be made was as
regards to measurements and boundaries, the Court was
of the view that the applications were required to be
allowed. The Court also noticed that title deed of the
property relating to property bearing No.5/39 was marked
as Ex.P.15 which contained the measurement. After
noticing the same, the writ petition was allowed.
RP No. 48 of 2020 IN
W.P NO. 17441/2015 AND W. P Nos. 22961-962/2015
5. The Court has noted the absence of
respondents in the proceedings who are now present
before this Court and have filed the review petition.
6. Though learned counsel for respondents has
contended that the order passed has the effect of
permitting substitution and change of identity of the
property which is contrary to the judgment of the Apex
Court, question of reappreciation in the review
proceedings would not arise. The Court has noticed the
judgment of the Apex Court and while holding that the
observations made in Paragraph Nos. 14 and 15 would
permit amendment and noticing that the boundaries of
property bearing No.5/39 were available in Ex.P.15 which
contained the measurement, the order was allowed.
7. I find no grounds are made out for interference.
The correctness of the findings relating to the applicability
of the law laid down by the Apex Court in the case of
Peethani Suryanarayana (supra) cannot be revisited as
regards its applicability to the facts of the case in the
RP No. 48 of 2020 IN
W.P NO. 17441/2015 AND W. P Nos. 22961-962/2015
review proceedings and it is beyond the purview of the
review proceedings to conduct such exercise as the Court
is not sitting in appeal.
8. Accordingly, the review petition is rejected.
Sd/-
JUDGE
VP
