Karnataka High Court
S C Sannalingaiah vs Smt. Puttaboramma on 15 April, 2024
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WP No. 7697 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 7697 OF 2020 (GM-CPC)
BETWEEN:
1. S.C. SANNALINGAIAH
SINCE DEAD BY HIS LR'S
1(a) SMT. S. BHARATHI
AGE: 64 YEARS
D/O LATE S.C. SANNALINGAIAH
1(b) SMT. S. SHASHIKALA
AGE: 60 YEARS
D/O LATE S.C. SANNALINGAIAH
1(c) SMT. S. SUDHAMANI
AGE: 58 YEARS
D/O LATE S.C. SANNALINGAIAH
1(d) SMT. SUNITHA
AGE: 45 YEARS
W/O S. CHENNEGOWDA
Digitally signed
by 1(e) SRI. CHANDAN C GOWDA
MARKONAHALLI
RAMU PRIYA AGE: 21 YEARS
Location: HIGH S/O S. CHENNEGOWDA
COURT OF
KARNATAKA
1(f) SRI. S. RAVIKUMAR
AGE: 53 YEARS
S/O LATE S.C. SANNALINGAIAH
1(g) SMT. S. PRAMILA
AGE: 50 YEARS
D/O LATE S.C. SANNALINGAIAH
1(h) SMT. S. PUSHPALATHA
AGE: 48 YEARS
D/O LATE S.C. SANNALINGAIAH
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WP No. 7697 of 2020
1(i) SMT. S.SHYLARANI
AGE: 46 YEARS
D/O LATE S.C. SANNALINGAIAH
ALL ARE RESIDING AT
SHIVALLI VILLAGE, DUDDA HOBLI,
MANDYA TALUK AND DISTRICT-571405.
...PETITIONERS
(BY SMT. RAKSHITHA D.J., ADVOCATE FOR PETITIONER NOS.1(a) TO
(i))
AND:
1. SMT. PUTTABORAMMA
AGED ABOUT 86 YEARS
W/O LATE BOREGOWDA,
SINCE DEAD BY HER LRS
WHO ARE ON RECORD AS
RESPONDENT NOS.2 TO 9
2. SRI. S.B.SHANKAREGOWDA,
AGED ABOUT 61 YEARS,
S/O LATE BOREGOWDA,
3. SRI. S.B.KRISHNA
SINCE DEAD BY HIS LRS
3(a) S.K.BOREGOWDA,
AGED ABOUT 30 YEARS,
S/O S.B.KRISHNA
3(b) S.K.NANDAN
AGED ABOUT 32 YEARS,
S/O S.B.KRISHNA
3(c) S.K.NAVYASHREE
AGED ABOUT 28 YEARS,
D/O S.B.KRISHNA,
3(d) S.K.KAVYASHREE
AGED ABOUT 30 YEARS,
D/O S.B.KRISHNA
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WP No. 7697 of 2020
4. SMT. S.B.PRASHEELA
AGED ABOUT 49 YEARS,
W/O LATE NAGARAJ,
5. SMT. S.M.ASHMA
AGED ABOUT 29 YEARS,
D/O LATE NAGARAJ,
6. SMT. M.B.AKSHATHA
AGED ABOUT 26 YEARS,
D/O LATE NAGARAJ,
7. SRI. S.P.SUDHAKAR
AGED ABOUT 52 YEARS,
S/O LATE BOREGOWDA,
8. SRI. HANUMEGOWDA
SINCE DEAD BY HIS LRS
8(a) MAHENDRA
AGED ABOUT 36 YEARS,
S/O HANUMEGOWDA,
8(b) BALARAJU
AGED ABOUT 34 YEARS,
S/O HANUMEGOWDA,
ALL ARE RESIDENTS OF
SHIVALLI, DUDDA HOBLI ,
MANDYA TALUK AND DISTRICT.
9. SMT. SARASWATHI
AGED ABOUT 54 YEARS,
W/O H.L.PUTTASWAMY
D/O LATE BOREGOWDA,
R/AT MALLANAYAKANA KATTE,
DUDDA HOBLI,
MANDYA DISTRICT.
...RESPONDENTS
(BY SRI. H.C. SHIVARAMU, ADVOCATE FOR IMPLEADING APPLICANT
IN IA 4/2023;
SRI. MITHUN G.A., ADVOCATE FOR RESPONDENT NOS.2, 3(a) TO
3(d), 4 TO 7, 8(a), 8(b) AND 9;
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WP No. 7697 of 2020
VIDE ORDER DATED 23.11.2021 COPY SERVED ON ADVOCATE FOR
RESPONDENT NOS.3(a) TO 3(c) AND 8(a) AND 8(b) IN TRIAL COURT
(NAME NOT MENTIONED) (VK NOT FILED);
VIDE ORDER DATED 06.06.2023, RESPONDENT NOS.2 TO 9 ARE
LEGAL REPRESENTATIVES OF DECEASED RESPONDENT NO.1)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH / SET ASIDE THE
ORDER DATED 04.06.2019 ON THE APPLICATION FILED BY THE
PETITIONERS UNDER SECTIONS 47 AND 151 OF CODE OF CIVIL
PROCEDURE, IN EX.PETITION NO.117/2015 PASSED BY THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE, MANDYA, WHICH IS
PRODUCED AT ANNEXURE-L TO THE WRIT PETITION,
CONSEQUENTLY ALLOW THE SAID APPLICATION AS PRAYED FOR IN
THE APPLICATION PRODUCED AT ANNEXURE-J.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The decree holder (since deceased represented by his
legal representatives) in E.P.No.117/2015 on the file of the
Principal District Judge at Mandya (henceforth referred to as
'executing Court') has filed this petition challenging the
correctness of an order dated 04.06.2019 in terms of which,
the executing Court rejected an application filed by him under
Sections 47 and 151 of CPC.
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2. The predecessor of the decree holder filed
O.S.No.1/1966 for declaration of title and recovery of
possession of the land bearing Sy.No.88 measuring 4 acre of
Shivalli Village, Dudda Hobli, Mandya Taluk. The said suit was
initially dismissed in terms of the judgment and decree dated
11.04.1990. On an appeal filed by the decree holder, his
mother and brothers in RFA No.316/1990, the appeal was
allowed and the suit filed for declaration of title and recovery of
possession was decreed. The defendant Nos.1 and 2 in the suit
were directed to handover possession to the legal
representatives of the plaintiff i.e., decree holder, his mother
and brothers. Feeling aggrieved by the said judgment and
decree, the judgment debtor filed Civil Appeal Nos.8533-
8534/2001 before the Hon'ble Supreme Court, which was
disposed off in terms of the order dated 15.03.2011 by which,
the judgment and decree passed by this Court in RFA
No.316/1990 was upheld. Following this, the decree holder
filed E.P.No.117/2015. In the meanwhile, 23 guntas of land
out of the suit property was acquired by the State Government
for various purposes resulting in bifurcation of the suit property
into two bits. Therefore, when the execution petition was filed,
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the decree holder mentioned two bits of property in Sy.No.88
and sought for delivery of possession of the two bits. The
judgment debtor Nos.2, 3, 4 and 7 as well as the judgment
debtor No.8 filed objections to the execution petition, which
were rejected. Later, a delivery warrant was issued and the
Court Bailiff in terms of his endorsement dated 25.06.2018
reported to the Court that the properties mentioned in the
delivery warrant did not correspond with the properties
mentioned in the decree in O.S.No.1/1966. Following this, the
decree holder filed an application under Sections 47 and 151 of
CPC bringing to the notice of the Court the acquisition of 23
guntas of land by the State Government for formation of nala
and road and consequent division of the decreed property into
two bits and therefore, prayed the Court to issue delivery
warrant in respect of two bits of land. This application was
opposed by the judgment debtor Nos.3, 4, 7 and 8, who
contended that the executing Court cannot go beyond the
decree and it is for the decree holder to get the decree
corrected.
3. The executing Court in terms of the impugned order
rejected the application filed by the decree holder on the
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ground that the delivery warrant was issued to deliver the
property mentioned in the decree passed in O.S.No.1/1966 and
that the Court Bailiff had reported that the boundaries
mentioned in the decree in O.S.No.1/1966 did not correspond
with the boundaries of the properties sought to be delivered
through process of the Court. It held that in view of the
endorsement issued by the Court Bailiff, executing Court
cannot go beyond the decree and consequently, held that the
delivery warrant in respect of the boundaries mentioned in the
execution petition cannot be issued.
4. Being aggrieved by the said order, the decree
holder has filed this petition.
5. The learned counsel for the decree holder contends
that the property in question is the land bearing Sy.No.88 of
Shivalli Village and the boundaries of the suit property are not
in dispute by the judgment debtors. She contended that the
suit is filed in the year 1966 and the intervening circumstance
namely the acquisition of 23 guntas of land by the State
Government for the purposes of nala and road, has resulted in
bifurcation of the suit property into two bits. Therefore, she
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contends that the question whether the two bits of property
was the remaining portion of the suit schedule property, could
be considered by the executing Court in exercise of its power
under Section 47 of CPC and it was not necessary for the
decree holder to go back to the Court, which passed a decree in
RFA No.316/1990.
6. The learned counsel for the judgment debtors on
the other hand did not dispute that 23 guntas of land was
acquired by the State Government. However, he contended
that since there is discrepancy in the boundaries mentioned in
the execution petition, which did not correspond with the
boundaries mentioned in O.S.No.1/1966, the executing Court
has no power to direct the delivery of the property other than
what was mentioned in the decree in O.S.No.1/1966.
7. I have considered the submissions made by the
learned counsel for the decree holder as well as the learned
counsel for the judgment debtors.
8. A perusal of Sections 47 and 151 of CPC leaves no
doubt that in respect of any dispute relating to the execution of
a decree, it is only the executing Court, which is entitled to
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determine such question. In the case on hand, the property
sought to be delivered is the land bearing Sy.No.88 of Shivalli
Village, which could not include the land acquired by the State
Government for the purposes of nala and road. Therefore,
what remained in Sy.No.88 of Shivalli Village had to be
delivered to the decree holder and the executing Court could
not have taken its hands off the case by holding that the
boundaries of the property mentioned in the execution petition
does not match the boundaries mentioned in the decree in
O.S.No.1/1966. This essentially was a question which fell for
consideration before the executing Court and it was bound to
decide the same. As the objections filed by the judgment
debtors do not indicate that what is mentioned in the schedule
to the execution petition is the remaining property in Sy.No.88,
the decree holder is entitled to recover possession of the
property mentioned in the execution petition. In that view of
the matter, the impugned order passed by the executing Court
warrants interference.
9. I.A.No.4/2023 is filed by the beneficiary claiming to
have succeeded to the suit property in terms of a Will executed
by the deceased - decree holder dated 13.06.2017. The
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applicant intends to come on record to claim the benefit of the
decree passed in O.S.No.1/1966.
10. Since the question whether the deceased - decree
holder had executed a Will or not and whether the applicant
was entitled to represent the estate of the deceased - decree
holder or not, are all questions which have to be decided by the
executing Court, the same shall be decided in accordance with
the Order XXII Rule 5 of CPC by the executing Court before
issuing delivery warrant to deliver the possession of the
property described in the schedule to the execution petition.
11. In view of the above, the petition is allowed. The
impugned order dated 04.06.2019 passed by the Principal
District Judge, Mandya in E.P.No.117/2015 is set aside. The
executing court is directed to issue delivery warrant to deliver
the possession of the property described in the schedule to the
execution petition. In view of the finding recorded,
I.A.No.4/2023 shall stand remitted to the executing Court. The
executing Court is directed to consider the claim of the alleged
testatee before issuing delivery warrant to the legal
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representatives of the deceased - decree holder to deliver
possession of the property mentioned in the execution petition.
12. In view of disposal of the petition, pending I.As., if
any, do not survive for consideration and the same stand
dismissed.
Sd/-
JUDGE
PMR
