Karnataka High Court
Shri Rajeshwar Tukaram Netalkar vs Shri Padmanabh Dattaraya ... on 7 November, 2023
Bench: M.I.Arun
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NC: 2023:KHC-D:12956
WP No. 103695 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
WRIT PETITION NO. 103695 OF 2023 (GM-CPC)
BETWEEN:
SHRI. RAJESHWAR TUKARAM NETALKAR,
AGED ABOUT 61 YEARS, OCC: BUSINESS,
SHOP IN C.M.C BUILDING, 1365,
ANKOLEKAR COMPOUND,
DHOBIGHAT ROAD, KARWAR.
...PETITIONER
(BY SMT. GAYATRI S. R., & SRI T.M. NADAF, ADVOCATES)
AND:
SHRI PADMANABH DATTARAYA ANKOLEKAR
SINCE DECEASED BY HIS LRS.,
1. SHRI NILESH,
S/O. PADMANABH DATTARAYA ANKOLEKAR,
AGE: YEARS, OCC:
GIRIJA A R/O. ANKOLEKAR COMPOUND,
BYAHATTI
DHOBIGHAT ROAD, KARWAR-581301.
Digitally
signed by
GIRIJA A SHRI NAGAPPA DATTATRAYA ANKOLEKAR,
BYAHATTI SINCE DECEASED BY HIS LRS.,
2. SMT. SOLOCHANA W/O. NAGAPPA ANKOLEKAR,
AGED ABOUT 74 YEARS, OCC: HOUSEHOLD WORK,
R/O. ANKOLEKAR COMPOUND,
DHOBIGHAT ROAD, KARWAR-581301.
3. SHRI SATISH S/O. NAGAPPA ANKOLEKAR,
AGED ABOUT 49 YEARS, OCC: HOUSEHOLD WORK,
R/O. ANKOLEKAR COMPOUND,
DHOBIGHAT ROAD, KARWAR-581301.
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WP No. 103695 of 2023
4. SHRI VIDYANAND S/O. NAGAPPA ANKOLEKAR,
AGED ABOUT 46 YEARS, OCC: HOUSEHOLD WORK,
R/O. ANKOLEKAR COMPOUND,
DHOBIGHAT ROAD, KARWAR-581301.
5. SHRI GURUDUTT S/O. NAGAPPA ANKOLEKAR,
AGED ABOUT 40 YEARS, OCC: HOUSEHOLD WORK,
R/O. ANKOLEKAR COMPOUND,
DHOBIGHAT ROAD, KARWAR-583101.
6. SMT. ROOPA W/O. ASHOK BADIGERI,
AGED ABOUT 54 YEARS, OCC: HOUSEHOLD WORK,
R/O. ANKOLEKAR COMPOUND,
DHOBIGHAT ROAD, KARWAR-581301.
SHRI RAMAKRISHNA DATTATRAYA ANKOLEKAR,
SINCE DECEASED BY HIS LRS.
7. SMT. JYOTI W/O. RAMAKRISHNA ANKOLEKAR,
AGED ABOUT 65 YEARS, OCC: HOUSEHOLD WORK,
R/O. ANKOLEKAR COMPOUND,
DHOBIGHAT ROAD, KARWAR-581301.
8. SMT. ARCHANA W/O. PRASHANT SHETTI,
AGED ABOUT 40 YEARS, OCC: HOUSEHOLD WORK,
R/O. ANKOLEKAR COMPOUND,
DHOBIGHAT ROAD, KARWAR-581301.
...RESPONDENTS
(BY SRI VENKATESH M. KHARAVI, ADVOCATE FOR R1 TO R8)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT
OF CERTIORARI AND QUASH THE IMPUGNED ORDER DATED
26.05.2023 PASSED BY THE PRL. SENIOR CIVIL JUDGE AND CJM,
KARWAR IN EX.P.02/2023 WHICH IS PRODUCED AT ANNEXURE-M.
THIS PETITION, COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 103695 of 2023
ORDER
Aggrieved by the order passed by the Principal Senior
Civil Judge and CJM, Karwar, in Execution Petition
No.2/2023 on I.A. filed under Order XXI Rule 26 read with
Section 151 of the Code of Civil Procedure, the judgment
debtor therein has preferred this writ petition.
2. The respondents herein preferred SMC
No.1/2012 on the file of the Principal Senior Civil Judge,
Karwar, to have the petitioner herein vacated from the suit
schedule property and also recover arrears of rent. The
same was allowed. The said order was challenged up to
Supreme Court and SLP filed by the petitioner herein has
been rejected by the Hon'ble Supreme Court and the
decree passed in SMC No.1/2012 has attained finality. In
the meanwhile, some third party filed original suit against
the respondents herein in respect of the suit schedule
property claiming ownership over the same.
3. It is submitted that the same has been decreed
against the respondents herein. Thereafter the
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respondents preferred Regular Appeal which has been
dismissed, against which they have preferred Regular
Second Appeal which is said to be pending and interim
order is said to have been passed in favour of the
respondents herein, staying operation of the judgment and
decree passed in the original suit.
4. Based on the said proceedings, on the ground
that respondents herein are not the owners of the property
concerned, the petitioner filed an interlocutory application
under Order XXI Rule 26 read with Section 151 of the
Code of Civil Procedure, with the prayer that the Execution
Court should stay the Execution Petition till disposal of
RSA No.100347/2022. The same has been rejected.
Aggrieved by the same, the present petition is filed.
5. The case of the petitioner is that, respondents
are not the owners of the property in question, and it is
the respondent in RSA No.100347/2022, who is real owner
of the property in question and that he has no objection
for the petitioner to stay in the property and for that
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reason, submits that the Execution Court could not have
dismissed the application for staying the Execution Petition
till the disposal of RSA No.100347/2022.
6. The respondents justify the order passed by the
Execution Court and pray for dismissal of the writ petition.
7. Admittedly, the petitioner has no right, title or
interest in the suit schedule property. He has suffered a
decree against the respondents and he has been directed
to vacate the suit schedule property and also pay arrears
of rent and the said decree has attained finality. The
Execution Court cannot go behind the decree and has to
execute the same. The rights that have been determined
in SMC No.1/2012 and also the original suit said to have
been filed by the third party against the respondents
herein are rights in personam which are enforceable inter
se between the parties and not rights in rem.
8. Admittedly, the petitioner is not a party to the
proceedings in the original suit or the Regular Second
Appeal and those proceedings do not confer any right in
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favour of the petitioner herein insofar as it relates to the
properties concerned.
9. For the aforementioned reasons, I do not see
any merit in the writ petition and the writ petition is
hereby dismissed.
Sd/-
JUDGE
gab
Ct-mck
