Karnataka High Court
Sri. Srinivas vs Sri.R. Krishnamurthy on 6 February, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:5217
WP No. 9408 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 9408 OF 2023 (GM-CPC)
BETWEEN:
1. SRI. SRINIVAS
SON OF LATE THAMMAIAH
AGED ABOUT 50 YEARS
2. SRI PARAMESH T
SON OF LATE THAMMAIAH
AGED ABOUT 38 YEARS
ALSO PRESENTLY AT NO. 223
6TH CROSS, BHUVANESHWARI COLONY
MARATHALLI POST, YAMALUR,
BENGALURU - 560 037.
3. SRI GANESH
SON OF LATE THAMMAIAH
AGED ABOUT 36 YEARS
4. SMT BHAGYAMMA
Digitally DAUGHTER OF LATE THAMMAIAH
signed by AGED ABOUT 54 YEARS
VANDANA S
Location:
HIGH 5. SMT AKKAYAMMA
COURT OF DAUGHTER OF LATE THAMMAIAH
KARNATAKA AGED ABOUT 70 YEARS
ALL RE RESIDING AT YAMALUR
VILLAGE, HAL POST,
BENGALURU - 560 037.
...PETITIONERS
(BY SRI. SREEVATSA, SENIOR COUNSEL FOR
SRI. P FREUD RICHARDSON.,ADVOCATE)
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AND:
1. SRI.R. KRISHNAMURTHY
SON OF LATE R RAMAIAH
AGED ABOUT 70 YEARS
RESIDING AT NO 56,
3RD CROSS, 2ND MAIN,
POTHALAPPA GARDEN
NEAR MICO MAIN GATE
ADUGODI POST, HOSUR ROAD,
BANGALORE - 560 030.
2. SRI CHINNAPPA
SON OF LATE THAMMAIAH
AGED ABOUT 52 YEARS
RESIDING AT YAMALUR
VILLAGE, HAL POST,
BENGALURU - 560 037.
3. SRI VENKATESH
SON OF LATE THAMMAIAH
AGED ABOUT 48 YEARS
RESIDING AT YAMALUR
VILLAGE, HAL POST,
BENGALURU - 560 037.
4. SMT ACHAMMA
DAUGHTER OF LATE THAMMAIAH
AGED ABOUT 41 YEARS
RESIDING AT YAMALUR
VILLAGE, HAL POST,
BENGALURU - 560 037.
5. SRI NANJUNDAPPA
SON OF VENKATAPPA
AGED ABOUT 84 YEARS
RESIDING AT YAMALUR
VILLAGE, HAL POST,
BENGALURU - 560 037.
6. SMT NAGARATHNAMMA
WIFE OF K S RANGANNA
AGED ABOUT 81 YEARS
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WP No. 9408 of 2023
7. SMT SHAMANNA
SON OF K S RANGANNA
AGED ABOUT 58 YEARS
8. SRI NAGARAJ
SON OF K S RANGANNA
AGED ABOUT 56 YEARS
9. SRI MANJUNATH
SON OF K S RANGANNA
AGED ABOUT 50 YEARS
RESPONDENT NO. 6 TO 9 ARE
RESIDING AT KARIYAMMA AGRAHAR
YAMALUR, BELANDUR POST
BENGALURU - 560 037.
10. SMT GUNDAMMA
DAUGHTER OF LATE K S RANGANNA
AGED ABOUT 62 YEARS
SRIVALLI 101,5TH CROSS TANVEER COLONY
2ND STAGE, KACHARAKANAHALLI
BANGALORE - 560 070.
11. SMT MANJULA @ MANGALA GOWRAMMA
DAUGHTER OF LATE K S RANGANNA
AGED ABOUT 58 YEARS
KANNAMMANA AGRAHARA
BELANDUR POST
BANGALORE- 560 037.
12. SRI RAMAKRISHNAPPA
SON OF KEMPANNA
AGED ABOUT 68 YEARS
MERCHANT YAMALUR
VILLAGE, HAL POST,
BENGALURU - 560 037.
13. SMT HALAMMA
WIFE OF MALLAPPA
AGED ABOUT 74 YEARS
RESIDING AT 55 (1) YAMALUR POST
YAMALUR VILLAGE, HAL POST,
BENGALURU - 560 037.
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14. SRI M SURESH
SON OF MALLAPPA
AGED ABOUT 50 YEARS
RESIDING AT 55 (1) YAMALUR POST
YAMALUR VILLAGE,
HAL POST,
BENGALURU - 560 037.
15. SRI BYRAPPA
SON OF MALLAPPA
AGED ABOUT 48 YEARS
RESIDING AT 55 (1) YAMALUR POST
YAMALUR VILLAGE,
HAL POST,
BENGALURU - 560 037.
16. SMT VIJAYALAKSHMI
WIFE OF NANJUNDAPPA
AGED ABOUT 73 YEARS
RESIDING AT YAMALUR
VILLAGE, HAL POST,
BENGALURU - 560 037.
17. SMT KATAMMA
WIFE OF MUNISWAMAPPA
AGED ABOUT 72 YEARS
RESIDING AT MARATHAHALLI GUTA
BENGALURU - 560 037.
18. SRI CHANDRAPPA
SON OF MUNISWAMAPPA
AGED ABOUT 78 YEARS
RESIDING AT MARATHAHALLI GUTA
BENGALURU - 560 037.
19. SMT VARAMMA
DAUGHTER OF MUNISWAMAPPA
AGED ABOUT 63 YEARS
RESIDING AT KANAKANAHALLI VILLAGE
NARASAPUR POST KOALR TALUK
KOLAR DISTRICT - 563 133.
20. SMT ALUMELAMMA
DAUGHTER OF VENAKTASWAMAPPA
WIFE OF NAGAPPA
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AGED ABOUT 64 YEARS
RESIDING AT YAMALUR HAL POST
BENGALURU - 560 037.
21. SRI YERAPPA
SON OF BOMMAIAH
AGED ABOUT 78 YEARS
RESIDING AT YAMALUR POST
BENGALURU - 560 037.
22. SMT RAMAKKA
WIFE OF MUNIYAPPA
AGED ABOUT 68 YEARS
RESIDING AT YAMALUR POST
YAMALUR VILLAGE (P)
BENGALURU - 560 037.
23. SRI G LAKSHMAIAH
SON OF R GOVINDAPPA
AGED ABOUT 78 YEARS
RESIDING AT YAMALUR
YAMALUR POST
BENGALURU - 560 037.
24. SMT SHARADAMMA
DAUGHTER OF BYADARAHALLI MUNISWAMAPPA
AGED ABOUT 68 YEARS
RESIDING AT YAMALUR
YAMALUR POST
BENGALURU - 560 037.
...RESPONDENTS
(BY SRI. S.S.NAGANAND, SENIOR COUSEL FOR
SMT. SUMANA NAGANAND., ADVOCATE FOR R-1
VIDE ORDER DATED: 24.05.2023, NOTICE TO
R-2 TO R-24 IS D/W)
THIS W.P IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED
ORDER DTD 21.04.2023 PASSED BY THE XVII ADDL. CITY CIVIL
AND SESSIONS JUDGE BENGALURU WHEREBY ALLOWED THE IA
NO.07 FILED UNDER ORDER VI RULE 17 OF THE CPC IN
EXECUTION PETITION NO.2661/2015(ANNX-A).
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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WP No. 9408 of 2023
ORDER
This petition by the judgment debtors 1(c) to 1(h) in
Ex.No.2661/2015 is directed against the impugned order dated
21.04.2023 passed by the 17th Addl. City Civil and Session Judge,
Bengaluru, whereby the application I.A.No.7 filed by the first
respondent - decree holder under Order 6 Rule 17, CPC was
seeking amendment of the execution petition was allowed by the
execution court.
2. Heard learned Senior counsel for the petitioners and
learned Senior counsel for the respondents and perused the
material on record.
3. A perusal of the material on record will indicate that the
first respondent - decree holder instituted the instant execution
proceedings seeking to enforce and implement the compromise
decree dated 13.02.2014 passed in FDP No.129/2009. According
to the first respondent - decree holder, due to oversight and
inadvertence, the properties shown as execution schedule
properties did not include all the properties covered under the
compromise decree which was sought to be executed and as such
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the present application I.A.No.7 was filed seeking amendment of
the execution petition by incorporating the additional properties
which were left out of the execution petition. The said application
was opposed by the petitioners - judgment debtors on two grounds
viz, that the execution proceedings against the additional /
amended properties were barred by limitation and that petitioners -
judgment debtors were not parties to the compromise decree.
After hearing the parties, the trial court proceeded to pass the
impugned order allowing the application, aggrieved by which the
petitioners are before this Court by way of the present petition.
4. A perusal of the impugned order will indicate that the trial
court has correctly and properly taken into account, the
compromise decree and properties incorporated there in and also
considered the schedule properties shown in the execution
proceedings in order to come to the correct conclusion that all the
properties covered under the compromise decree had not been
included in the execution proceedings which necessitated
permission to be granted in favour of the decree holder to amend
the execution petition and include omitted properties in the
execution proceedings. Under these circumstances, I am of the
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considered opinion that the impugned order passed by the
Executing court allowing the amendment application cannot be said
to suffer from any illegality or infirmity nor can the same be said to
have occasioned failure of justice warranting interference by this
Court as held in the case of Radhey Shyam and Ors v Chhabi
Nath and Ors - (2015) 5 SCC 423.
5. Insofar as the contention of the petitioners - judgment
debtors that the claim of the respondent-decree holder in respect of
the additional / amended properties sought to be added in the
execution proceedings is barred by limitation is concerned, the
interest of the petitioners can be adequately safeguarded by
directing that the amendment shall not relate back to the date of
filing the execution proceedings but shall be reckoned / considered
from the date of filing the amendment application as held by the
Apex court in case of Sampath Kumar v Ayyakannu and Ors. -
AIR 2002 SC 3369 and L.C. Hanumanthappa v H.B. Shivakumar
- (2016) 1 SCC 332.
6. Insofar as the contention of the petitioners judgment
debtors that they are not parties to the compromise decree passed
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in FDP.No.129/2009 dated 13.02.2014 is concerned, even this
aspect would necessarily have to be decided by the executing
court after providing sufficient and reasonable opportunity to both
sides and by keeping question/issue open, to be decided by the
executing Court. Under these circumstances, I deem it just and
appropriate to modify the impugned order and issue certain
directions to the executing Court.
7. In the result, I pass the following:
ORDER
(i) Petition is hereby disposed of.
(ii) Impugned order dated 21.04.2023 in Ex.No.2661/2015
passed by the 17th Addl. City Civil and Session Judge, Bengaluru,
is hereby modified.
(iii) I.A.No.7 filed by the respondent No.1-decree holder is
allowed subject to the condition of the proposed amendment shall
not relate back to the date of execution petition but shall be
reckoned / considered from the date of the amendment application
I.A.No.7 which was filed on 03.01.2022.
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(iv) All rival contentions between the parties including the
maintainability of the execution proceedings as against the
petitioners as well as the question of limitation in relation to all the
execution schedule properties are kept open and no opinion is
expressed on the same.
Sd/-
JUDGE
DHA
