Karnataka High Court
Sri. A Srinivasa Murthy vs Smt. M C Shashi Rekha on 14 February, 2024
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NC: 2024:KHC:6375
WP No. 434 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 434 OF 2022 (GM-CPC)
BETWEEN:
1. SRI. A SRINIVASA MURTHY
SON OF LATE AIYYANNA
AGED ABOUT 48 YEARS
R/AT NO.2063 IJOOR CIRCLE
RAMANAGARA TOWN
RAMANAGARA DISTRICT - 562 159
...PETITIONER
(BY SRI. M RAJASHEKAR FOR
SRI SRINIVAS MANOHAR KULKARNI., ADVOCATES)
AND:
1. SMT. M C SHASHI REKHA
W/O LATE T RAMAIAH
AGED 50 YEARS
R/AT NO.313/-C
1ST FLOOR RWF-WEST COLONY
Digitally signed YELAHANKA BENGALURU
by PAVITHRA N
Location: high
court of REPRESENTED BY HIS GPA HOLDER
karnataka LINGE GOWDA
AGED ABOUT 51 YEARS
S/O KASI GOWDA
VONTIMANE GUNGARAHALLI
THIMMASANDRA POST
KOOTAGAL HOBLI
RAMANAGARA TALUK
RAMANAGARA DITRICT - 562 159
SRI AIYYANNA
S/O LATE THIMMEGOWDA
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NC: 2024:KHC:6375
WP No. 434 of 2022
SINCE DECEASED BY HIS LRS
SMT LAKSHMMAMMA
2. WIFE OF LATE AIYYANNA
AGED ABOUT 80 YEARS
RESIDING AT NO.2063 IJOOR CIRCLE
RAMANAGARA TOWN
RAMANAGARA DISTRICT - 562 159
3. SMT VENKATARATHNAMMA
D/O LATE AIYYANNA
AGED ABOUT 60 YEARS
RESIDING AT NO.2063 IJOOR CIRCLE
RAMANAGARA TOWN
RAMANAGARA DISTRICT - 562 159
4. SRI A HANUMANTHAKRISHNA
S/O LATE AIYYANNA
AGED ABOUT 46 YEARS
RESIDING AT NO.2063 IJOOR CIRCLE
RAMANAGARA TOWN
RAMANAGARA DISTRICT - 562 159
5. SMT MOHAN KUMARI
D/O LATE AIYYANNA
AGED ABOUT 51 YEARS
RESIDING AT NO.2063 IJOOR CIRCLE
RAMANAGARA TOWN
RAMANAGARA DISTRICT - 562 159
...RESPONDENTS
(BY SRI. JAYAKIRTHI M C.,ADVOCATE FOR R1
R2 TO 4 D/W V/O DATED 23.11.2023
R5 D/W V/O DATED 07.02.2024)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN
R.A.NO.24/2021 ON THE FILE OF THE ADDL SENIOR CIVIL JUDGE
AND JMFC AT RAMANAGARA PERUSE THE SAME AND ALLOW THIS
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NC: 2024:KHC:6375
WP No. 434 of 2022
W.P. AND ISSUE QUASH THE ORDER DATED.14.12.2021 PASSED ON
IA NO.II IN R.A.NO.24/2021 ON THE FILE OF THE ADDL SENIOR
CIVIL JUDGE AND JMFC AT RAMANAGARA ANENXURE0E AND
THEREBY ALLOW THE APPLICATIONS FILED BY THE PETITIONER AND
STAY FURTHER PROCEEDINGS IN PURSUANCE OF THE JUDGEMENT
AND DECREE DATED.29.07.2019 PASSED IN O.S.NO.176/2009 ON
THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC AT
RAMANGARA AND ETC.,
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY THE
COURT PASSED THE FOLLOWING:
ORDER
Heard learned counsel for the petitioner and the
respondents.
2. The petitioner has sought for issuance of writ of
certiorari to quash the order dated 14.12.2021 passed on IA
No. 2 in RA. No.24 of 2021 on the file of learned Additional
Senior Civil Judge & JMFC, Ramanagara. On perusal of the
materials on record, it is found that the First Appellate Court
had not passed any order on IA No.II filed for seeking stay of
the execution and proceedings in Ex. case No.78 of 2019.
Hence, in the absence of any order that is being challenged, the
writ petition is liable to be dismissed.
NC: 2024:KHC:6375
3. Learned counsel for the petitioner submits that
since he filed RA 24 of 2021 impugning the judgment and
decree passed in OS No. 176 of 2009 filed for seeking specific
performance of the contract and since there was delay in filing
the appeal, he has filed IA No.I seeking condonation of delay.
In the mean time, Ex. case No. 78 of 2019 was filed before the
Executing Court and the sale deed got executed. There are few
dwelling houses, which are still in the possession of the
petitioner and therefore, he was seeking stay of the execution
case.
4. It is noticed that the petitioner being appellant had
sought for stay of the proceedings before the Executing Court
vide order dated 14.12.2021, which is impugned before this
Court. The Appellate Court passed the following order:
"Learned counsel for appellant No.2 sought for
stay of proceedings but there is delay in preferring the
Appeal which is not yet condoned. Hence, stay is not
granted in respect of IA No.II for cross examination of
PW-1 by 10.01.2022"
5. When admittedly, there was delay in preferring the
appeal, the Appellate Court could not have passed such interim
order granting stay, without the Court being satisfied about the
NC: 2024:KHC:6375
sufficiency of reasons shown by the appellant for condonation
of delay in preferring the appeal. Unless the delay is condoned,
there will not be any appeal pending for consideration of the
Appellate Court in the eye of law.
6. It is submitted that the petitioner who is appellate
before the Appellate Court is already examined in chief and he
has to be cross examined by the respondent on the application
field for seeking condonation of delay. Under such
circumstances, I am of the opinion that ends of justice would
be met, if learned counsel for the petitioner is directed to keep
PW-1 present in RA. No.24 of 2021 for the purpose of cross
examination and the learned counsel for the respondents to
cross examine the witness without further delay and also direct
the First Appellate Court in RA No.24 of 2021 to consider IA for
condonation of the delay in a time bound manner with the co-
operation of both the parties.
7. Hence, I proceed to pass the following:
ORDER
(i) The Writ Petition is disposed off.
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(ii) The petitioner is directed to keep PW-1 present
before the First Appellate Court in RA. No.24 of 2021 on the
next date of hearing. Learned counsel for the respondents is
directed to cross examine the witnesses without any delay.
(iii) The First Appellate Court is directed to dispose off
the appeal on merits along with IA No.1 seeking condonation of
delay. Till then, the respondents shall not precipitate Ex.case
No.78 of 2019. The First Appellate Court is directed to expedite
the hearing and to dispose off the same atleast within four
months from the date of receipt of the copy of the order.
(iv) Office is directed to communicate this order to the
Court concerned.
Since the main petition is disposed off, IA No. 4 of 2023
filed for vacating stay is dismissed.
Sd/-
JUDGE
SPV
