Karnataka High Court
Bamalu And Ors vs Lachchu And Ors on 4 April, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC-K:2828
WP No. 201942 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
WRIT PETITION NO.201942 OF 2019 (GM-CPC)
BETWEEN:
1. BAMALU S/O BHEEMU LAMANI
AGED ABOUT 65 YEARS,
OCC: AGRICULTURE
R/O HANCHINAL (L.T) THANDA-1
TQ: DIST: VIJAYAPURA.
2. SOMALU S/O BHEEMU LAMANI
DECEASED BY LRS.,
2A) MADDU S/O LATE SOMALU
AGE: 41 YEARS, OCC: AGRICULTURE
R/O HANCHINAL (L.T) THANDA-1
TQ: DIST: VIJAYAPURA.
Digitally signed 2B) SHIVA S/O LATE SOMALU
by RENUKA AGE: 35 YEARS, OCC: AGRICULTURE
Location: High R/O HANCHINAL (L.T) THANDA-1
Court Of
Karnataka TQ: DIST: VIJAYAPURA.
3. REVU S/O BHEEMU LAMANI
AGED ABOUT 66 YEARS,
OCC: AGRICULTURE
R/O HANCHINAL (L.T) THANDA-1
TQ: DIST: VIJAYAPURA.
4. HEERU S/O BHEEMU LAMANI
AGED ABOUT 62 YEARS,
OCC: AGRICULTURE
R/O HANCHINAL (L.T) THANDA-1
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NC: 2024:KHC-K:2828
WP No. 201942 of 2019
TQ: DIST: VIJAYAPURA.
...PETITIONERS
(BY SRI SHIVAKUMAR KALLOOR, ADVOCATE)
AND:
1. LACHCHU S/O LALLU LAMANI
AGED ABOUT 55 YEARS,
OCC: AGRICULTURE
R/O JALAGERI LT. NO: 2,
DIST: VIJAYAPURA-586201
2. GANGABAI W/O MEGHU CHAVAN
AGE: MAJOR, OCC: HOUSEHOLD
R/O HANCHINAL (L.T) THANDA-1
TQ: DIST: VIJAYAPURA-586201
3. SUNITA W/O MAHANTESH CHAVAN
AGE: MAJOR, OCC: HOUSEHOLD
R/O HANCHINAL (L.T) THANDA-1
TQ: DIST: VIJAYAPURA-586201
4. KAMALABAI W/O PHADDU CHAVAN
AGED MAJOR, OCC: HOUSEHLD
R/O HANCHINAL (L.T) THANDA-1
TQ: DIST: VIJAYAPURA-586201
...RESPONDENTS
(BY SRI DEEPAK V. BARAD, ADVOCATE FOR R1;
R-2 SERVED;
V/O DT. 18/7/2019, NOTICE TO R3 AND R4 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT OF CERTIORARI QUASHING THE IMPUGNED
ORDER DATED 10.10.2018 ANNEXURE-C PASSED BY THE I
ADDL. SENIOR CIVIL JUDGE AND CJM VIJAYAPUR IN
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WP No. 201942 of 2019
E.P.NO.364/2012 AND DISMISS E.P.NO.364/2012 FILED BY
RESPONDENT NO.1 IN ENDS OF JUSTICE AND EQUITY.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard Sri Shivakumar Kalloor, learned counsel for
the petitioners, Sri Deepak V. Barad, learned counsel for
respondent No.1.
2. The Writ Petition is filed with the following
prayer:
"a) Issue a writ of certiorari quashing the
impugned order dated 10.10.2018 Annexure-C
passed by the I Addl. Senior civil judge and
CJM Vijayapur in E.P.No.364/2012 and dismiss
E.P.No.364/2012 filed by respondent No:1, in
ends of justice and equity.
b) Issue any writ order or direction as this
Hon'ble Court deems fit in the circumstances
of the case, in the ends of justice."
3. The facts in brief are as under:
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The respondents obtained a decree for specific
performance which was put into execution by filing a
execution petition on 24.08.2012 in Execution Petition
No.364/1998. As per the said execution petition, the
decree passed in O.S.No.351/1998 dated 12.11.1998 was
put into execution. Thus, prima facie it is a belated
execution petition. However, the Trial Court considering
the rival contentions of the parties, especially the
objections raised by the judgment debtors in opposing the
execution petition as a time barred execution petition, by
order dated 10.10.2018 dismissed the objections and
proceeded with the execution. The said order is called in
question in this writ petition.
4. Sri Shivakumar Kalloor contended that
admittedly, the execution petition came to be filed on
24.08.2012 which is beyond the period of 12 years and
therefore, the Executing Court ought to have upheld the
objections of the writ petitioners and dismissed the
execution petition as time barred.
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5. Per contra, Sri Deepak V. Barad, learned
counsel for respondent No.1 invited the attention of this
Court that the execution petition could not be filed early
on account of the fact that another suit was filed by a third
party against the judgment debtors in O.S.No.208/1997
which ultimately got concluded in R.A.No.69/2007 by
order dated 04.01.2011. Therefore, date of dismissal is to
be construed as the commencing point of limitation for
filing the execution petition, inasmuch as the decree
passed in O.S.No.351/1998 which is sought to be
executed in the execution petition was a compromise
decree and the present petitioners who are the judgment
debtors were party to both the compromise petition and
defendants in O.S.No.208/1997.
6. He further contended that it was their bounden
duty to brought to the notice of the Court in
O.S.No.208/1997 that there is already compromise decree
in respect of the suit property and having not done so, the
respondents/decree holders were under the fond hope that
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the judgment debtors would execute the sale deed in their
favour and therefore, delayed execution is filed when the
respondents came to know that the writ petitions are only
interested in avoiding the decree. Therefore, objections
has been rightly rejected by the execution Court and
sought for dismissal of the writ petition.
7. Having heard the learned counsel for the
parties, this Court perused the material on record
meticulously. On such perusal of the material on record, it
is crystal clear that O.S. No.351/1998 ended in a
compromise that too before the Lok Adalath.
8. Instead of executing the sale deed in favour of
the respondents, the present petitioners dodged the
proceedings on one reason on the other and ultimately,
they also assigned the reason that another suit is filed by
Thavaru in O.S.No.208/1997 and he would get the
favourable orders in the said suit and thereafter, execute
the sale deed in favour of the respondents.
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9. Be it what it may. The objections raised by the
petitioners did not contain these aspects of the matter
before the Executing Court. The learned Judge in the
Executing Court taking note of the principles of law
enunciated in the judgment of the Apex Court reported in
AIR 2009 SC 1200 and 2018 SAR (Civil) 498 took a
view that Article 14 of the Limitation Act provides for
exclusion of the time of proceeding bona fide in Court
without jurisdiction, which means when the plaintiff is
prosecuting any suit against the defendant then that
period has to be excluded.
10. In the case on hand, even though Article 14 of
the Limitation Act would not straightway be made
applicable, inasmuch as the refusal by the judgment
debtors is only after the conclusion of the proceedings in
O.S.No.208/1997 which ultimately culminated by the
judgment of the fist appellate Court in R.A No.69/2007 by
judgment dated 04.01.2011, the objections raised on
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behalf of the petitioners that the decree is time barred
cannot be countenanced in law.
11. Therefore, rejecting the objections of the
judgment debtors, that the decree is time barred is just
and proper.
12. Accordingly, the following:
ORDER
The Writ Petition is dismissed
Sd/-
JUDGE
RSP
CT:SI
