Smt Rekha G Pathak vs Siddarth Minerals
2023 Latest Caselaw 6723 Kant

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                                                           NC: 2023:KHC:34535
                                                           WP No.22837 of 2022




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                          DATED THIS THE 22ND DAY OF SEPTEMBER, 2023
                                                BEFORE
                          THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
                            WRIT PETITION NO.22837 OF 2022 (GM-CPC)
                   BETWEEN:

                   1.   SMT. REKHA G. PATHAK
                        W/O G.N. PATHAK
                        AGED ABOUT 59 YEARS
                        R/AT FLAT NO.112, SRI SAI PARADISE
                        KOTHANOOR, MAIN ROAD, J P NAGAR
                        8TH PHASE, BENGALURU 560062.
                                                                  ...PETITIONER
Digitally signed   (BY SRI. H. SURESH, ADV.,)
by RUPA V
Location: HIGH     AND:
COURT OF
KARNATAKA          1.   SIDDARTH MINERALS
                        REP. BY ITS MANAGING PARTNERS
                        R. GANGADHAR NO.7, KATHA NO.126
                        SY NO.34/5B, CHANNASANDRA
                        OPP. N S COLLGFE
                        UTTARAHALLI HOBLI
                        BENGALURU 560061.

                   2.   R. GANGADHAR
                        S/O LATE REVANNA
                        AGED ABOUT 47 YEARS.

                   3.   SMT. S. GEETHA
                        W/O R. GANGADHAR
                        AGED ABOUT 41 YEARS.

                        NO.2 & 3 ARE R/AT NO.136
                        4TH A CROSS, BSK 3RD STAGE
                        3RD PHASE, ITTAMADU VILLAGE
                        BENGALURU 560085.
                                                               ...RESPONDENTS
                   (BY SRI. PRADEEP H.S. ADV., FOR C/R3)
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                                           NC: 2023:KHC:34535
                                           WP No.22837 of 2022




     THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED
ORDER DATED 17.10.2022 AS PER ANNEXURE-H IN I.A. NO.
1/2020 PASSED IN MISC. PETITION NO 355/2020 BY THE
XVTH ADDL CITY CIVIL AND SESSIONS JUDGE AT
BENGALURU, (CCH-3) AND FURTHER TO DISMISS I.A.NO
01/2020 AS PRAYED FOR. GRANT AN INTERIM ORDER TO
STAY ALL FURTHER PROCEEDINGS IN MISC.PETITION NO
355/2020 MUCH LESS THE I.A.NO 01/2020 PASSED BY THE
CITY CIVIL AND SESSIONS JUDGE AT BENGALURU, (CCH-3).

     THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

This writ petition is filed under Article 227 of the

Constitution of India seeking prayer to quash the order

dated 17.10.2022 passed on I.A.No.1/2020 in Misc.

No.355/2020 by the XV Addl. City Civil and Sessions Judge,

Bangalore whereby the application filed by the respondent

under Section 151 read with Section 141 of the Code of Civil

Procedure, 1908 was allowed by staying the execution and

operation of the decree passed in O.S.No.1681/2017 in

Ex.No.1703/2019 till the disposal of the Misc.No.355/2020.

2. Brief facts giving rise to filing of this petition are that

the petitioner filed O.S.No.1681/2017 against the

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respondents herein for recovery of money. Though the

notice was duly served on the respondents, they have failed

to appear in the proceedings. Hence, the Civil Court has

passed exparte judgment and decree in favour of the

petitioner and directed the respondents to pay

Rs.17,47,606/- with interest at the rate of 18% p.a. from the

date of Cheque till realization. The petitioner has initiated

execution proceedings in Ex. Case No.1703/2019 wherein

the Execution Court has allowed the application for

attachment of immovable property. Thereafter, the

petitioner has filed another application under Order XXI

Rule 64 of the CPC for sale of properties of the respondents

/ judgment debtors. The said application also came to be

allowed on 05.04.2022, the conduct of the public auction

was scheduled on 10.06.2022. It is submitted that the

respondents have filed Misc.No.355/2020 seeking to set

aside the exparte judgment and decree and also filed

I.A.No.1/2020 under Section 151 read with Section 141 of

the CPC seeking stay of execution proceedings. The Trial

Court has allowed I.A.No.1/2020, by staying the judgment

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and decree in O.S.No.1681/2017. Being aggrieved by the

said order, the present petition is filed.

3. Sri.H.Suresh, learned counsel appearing for the

petitioner submits that the impugned order passed by the

Trial Court is erroneous and contrary to the material

available on record. The Trial Court has failed to appreciate

the fact that the present application is filed after a lapse of

1245 days from the date of judgment and decree. It is

further submitted that the respondents were well aware

about the suit proceedings and have evaded the service of

notices, waited till the judgment is passed and orders are

passed in the execution proceedings and when their

property was put for public auction, they have filed

miscellaneous petition and also filed this application seeking

for stay of the judgment and decree in O.S.No.1681/2017.

These aspects are not properly considered by the Trial Court

while passing the impugned order. It is further submitted

that the conduct of the respondents disentitle any relief. He

seeks to allow the writ petition.

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4. Per contra, Sri.Pradeep H.S., learned counsel for the

respondent No.3 submits that the respondents have

specifically pleaded in the written statement that the

respondents have not been served with notice in

O.S.No.1681/2017 and the petitioner herein has given

incorrect address in the plaint. The Trial Court in the suit

has incorrectly held that the service of notice is sufficient,

the said notice was never served on the respondents. It is

further submitted that the petitioner is well aware that the

respondents are not residing in address No.7, Khatha

No.126, Sy.No.34/5B, Channasandra, Opp RNS College,

Uttarahalli, Bengaluru - 560 061 and knowing fully well, the

petitioner has given incorrect address. The respondents are

residing in address No.136, 4th A Cross, BSK 3rd Stage, 3rd

Phase, Ittamadu Village, Bengaluru - 560 085. It is also

submitted that knowing fully well, the petitioner has

obtained exparte decree and the respondents have got a

good case on merits in the suit. It is contended that the

miscellaneous petition filed by the respondents seeking to

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recall the judgment and decree is pending consideration

before the Trial Court and during the pendency of

miscellaneous petition, if the execution proceedings is

allowed to be continued by executing the judgment and

decree, their petition filed under Order IX Rule 13 of the CPC

would render infructuous and it would cause great injustice

to the respondents. He seeks dismissal of the petition.

5. I have heard the learned counsel for the petitioner,

learned counsel for the respondent No.3 and perused the

material available on record. The parties do not dispute that

the petitioner has field O.S.No.1681/2017 for recovery of

money and the said suit came to be decreed exparte

directing the respondents to pay Rs.17,47,606/- along with

interest at the rate of 18% p.a. It is also not in dispute that

the petitioner has initiated execution petition to execute the

decree and in the execution petition, the Execution Court

has passed order for attachment of the property and also

order for sale of the property in question and sale is also

scheduled. During the interregnum, the respondents have

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moved the Civil Court and have filed miscellaneous petition

under Order IX Rule 13 of the CPC seeking to set aside the

judgment and decree dated 25.09.2019 passed in

O.S.No.1681/2017 and also filed an application under

Section 151 read with 141 of the CPC seeking to stay the

judgment and decree passed in O.S.No.1681/2017 dated

25.02.2019. On close scrutiny of the averments made in the

miscellaneous petition and the application, it is evident that

the miscellaneous petition filed for setting aside of the

judgment and decree is pending and if the Execution Court

is allowed to execute the judgment and decree dated

25.02.2019, the miscellaneous petition filed by the

respondents would render infructuous. The respondent has

specifically contended in the miscellaneous petition that suit

summons was never served on the defendants and the

address shown in the plaint cause title is incorrect. When

things stood thus, ultimately the parties to the proceedings

are required to be provided with sufficient opportunity to put

forth their case in the miscellaneous proceedings. It would

be appropriate to stay the judgment and decree passed in

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O.S.No.1681/2017 dated 25.02.2019 during the pendency of

the miscellaneous petition. The contentions urged by the

learned counsel for the petitioner that the respondents have

approached the Court belatedly and on flimsy grounds, the

said contentions are required to be considered by the Court

in the miscellaneous proceedings. This Court is of the

considered view that if the respondents are not allowed to

put forth their case in the miscellaneous proceedings, it

would not meets the ends of justice. Ousting the

respondents at this stage on technical grounds, would result

in depriving them of placing their substantive plea in the

miscellaneous proceedings. The Trial Court has considered

the material available on record and has recorded the

finding. This Court do not find any error or perversity in the

finding recorded by the Trial Court calling for interference in

this petition.

6. At this stage, learned counsel for the petitioner

submits that the respondents are unnecessarily taking

adjournments in the miscellaneous proceedings. In reply,

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learned counsel for the respondent submits that they would

co-operate for early disposal of the miscellaneous

proceedings. The said submission is taken on record. The

Trial Court is directed to take up the miscellaneous

proceedings on priority basis.

7. For aforementioned reasons, there is no merit in the

contentions urged by the petitioner.

Accordingly, the writ petition is disposed of.

Sd/-

JUDGE

RV