Karnataka High Court
Guruputrappa S/O. Nelakantappa Kammar vs Shashikala Chandrakant Kammar on 20 February, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 104552 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 104552 OF 2018 (GM-CPC)
BETWEEN:
1. GURUPUTRAPPA S/O. NELAKANTAPPA KAMMAR
SINCE DECEASED BY HIS LRS:
1A SMT. SHARADA W/O. GURUPUTRAPPA,
AGE:65 YEARS, OCC:HOUSEHOLD WORK,
R/O. YELLAMMA NILAYA, KESHWAPUR,
HUBBALLI-580023.
1B SMT. VIDYA W/O. VISHWANATH KAMMAR
AGE:39 YEARS, OCC:HOUSEHOLD WORK,
R/O. YELLAMMA NILAYA KESHWAPUR,
HUBBALLI-580023.
YASHAVANT
NARAYANKAR
1C SMT. D. VILASVATHI W/O. SHASHI KANTI
Digitally signed
AGE:47 YEARS, OCC:HOUSEHOLD WORK,
by YASHAVANT
NARAYANKAR
Date: 2024.02.22
R/O. EXTENSION AREA,
11:57:28 +0530
OPP:LION'S SCHOOL, BAGALKOT.
1D SMT. VIDYA W/O. KIRAN KANTHI
AGE:45 YEARS, OCC:HOUSEHOLD WORK,
R/O. EXTENSION AREA,
OPP:LION'S SCHOOL, BAGALKOT.
1E MR. RAVIRAJ S/O. GURUPUTRAPPA
R/O. 3RD CROSS, ADARSH NAGAR,
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WP No. 104552 of 2018
BEHIND SHAMBU APARTMENT ROAD,
CORNER PLOT, HUBBALLI.
...PETITIONERS
(BY SRI. H. R. DESHPANDE, ADVOCATE)
AND:
1. SHASHIKALA CHANDRAKANT KAMMAR
AGE:58 YEARS, OCC:HOUSEHOLD WORK,
R/O. SIDDESHWAR SADAN,
BOMMAPUR ONI, HUBBALLI.
2. SMT. JYOTHI W/O. SHIVARAJ LIGADE
AGE:39 YEARS, OCC:HOUSEHOLD WORK,
R/O. D NO.509, "HAREKRISHNA VIHAR",
MANTRI CHANDAK PARK, VIJAPUR ROAD,
SHOLAPUR-413004.
3. ROHINI D/O. CHANDRAKANT KAMMAR
AGE:29 YEARS, OCC:HOUSEHOLD WORK,
R/O. SIDDESHWAR SADAN,
BOMMAPUR ONI, HUBBALLI.
4. SHAMBHULINGAPPA
S/O. LATE SRI SIDDAPPA KAMMAR
AGE:50 YEARS, OCC:BUSINESS,
R/O. SIDDESHWAR SADAN,
BOMMAPUR ONI, HUBBALLI.
...RESPONDENTS
(BY SRI. S.C.JAINAR, ADV., FOR R1 TO R3;
R4- NOTICE DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO I) ISSUE A
WRIT OF CERTIORARI OR ORDER OR DIRECTION OR A WRIT TO
QUASH THE IMPUGNED ORDERS DATED 26.06.2018 IN
EXECUTION PETITION NO.125/2012 PASSED B Y THE LEARNED
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WP No. 104552 of 2018
PRL.SENIOR CIVIL JUDGE, HUBBALLI AT ANNEXURE-A AND
CONSEQUENTLY TO QUASH THE JUDGMENT/DECREE PASSED IN
FDP NO.7/2007 DATED 29.01.2011 AT ANNEXURE-G AS A
NULLITY AND INVALID AND ALSO THE EXECUTION PETITION
NO.125/2012 PENDING ON THE FILE OF THE PRL.SENIOR CIVIL
JUDGE, HUBBALLI AS NOT MAINTAINABLE; II) GRANT SUCH
OTHER AND FURTHER RELEIFS AS THIS HON'BLE COURT MAY
DEEMS FIT TO GRANT UNDER THE CIRCUMSTANCES OF THE
CASE.
THIS PETITION, COMING ON FOR PRELIMINARY BEARING
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioners are before this Court seeking for the
following reliefs:
i) issue a writ of certiorari or order or direction or
a writ to quash the impugned orders dated
26.06.2018 in Execution Petition No.125/2012
passed b y the learned Prl.Senior Civil Judge,
Hubballi at Annexure-A and consequently to
quash the judgment/decree passed in FDP
No.7/2007 dated 29.01.2011 at Annexure-G as
a nullity and invalid and also the Execution
Petition No.125/2012 pending on the file of the
Prl.Senior Civil Judge, Hubballi as not
maintainable;
ii) grant such other and further releifs as this
Hon'ble Court may deems fit to grant under the
circumstances of the case.
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2. One Sri.Chandrakant had filed a suit in
O.S.No.186/2005 seeking for partition and separate
possession for his share in the suit schedule properties
therein. One Guruputrappa was defendant No.1
therein. The said suit came to be decreed on
22.12.2006 in part, and a preliminary decree was
drawn up. Final Decree Proceedings having been filed
in FDP No.7/2007 on 10.02.2007, final decree was
also drawn up on 29.01.2011. The petitioners are
before this Court challenging the same on the ground
that the final decree is a nullity in the eye of law since
Guruputrappa, who was respondent No.1 in FDP
No.7/2007, had expired on 12.06.2007 and his legal
heirs were not brought on record. On that basis, it is
contended by the learned counsel for the petitioners
that the final decree is a nullity without having
brought the legal representatives on record.
3. Secondly, it is contended that the properties subject
matter of the final decree and now the execution
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proceedings are heavy machineries, which cannot be
removed from the property and/or dismantled and as
such final decree is unenforceable. On these grounds
the aforesaid reliefs have been sought for and a
prayer made that the said reliefs be granted.
4. Sri.S.C.Jainar, learned counsel appearing for
respondents 1 to 3, would submit that notice had
been issued to the legal representatives of
Guruputrappa, who was respondent No.1 in FDP
No.7/2007 on 18.06.2007. Sri.R.G.Dongadi (Sri RGD),
Advocate, entered appearance for respondents 1(a) to
1(c). Respondents 1(d) and 1(e) were placed ex-
parte. His submission is that, the said counsel, whose
initials have been shown in the order sheet as RGD,
has participated in the proceedings, filed objections,
cross-examined the witnesses, addressed arguments
on the main petition and only thereafter that the
decree was drawn up.
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5. His further submission is that the decree in
O.S.No.186/2005 had been challenged by two of the
legal representatives of deceased Guruputrappa in
RFA No.800/2007, which came to be dismissed.
Thereafter, the wife of Guruputrappa had filed a suit in
O.S.No.374/2012 seeking for declaration that the FDP
proceedings against a dead person as null and void,
which suit came to be dismissed. The said judgment
dated 16.12.2016 passed in O.S.No.374/2012 having
been taken up in appeal in R.A.No.10/2017, the said
regular appeal also came to be dismissed on
30.07.2020 and same having attained finality, the
petitioners cannot now once again challenge the said
final decree to be a nullity when one of the petitioners
i.e. petitioner No.1(a), who is mother of petitioners
1(b) to 1(e) has hopelessly failed in her endeavor in
the said suits.
6. His last submission is that, the petitioners had also
challenged the final decree by filing RFA
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No.3026/2011, which also came to be dismissed by
this court on 14.03.2012 and as such, the present
petition is an abuse of process of court and requires to
be dismissed.
7. Heard Sri.H.R.Deshpande, learned counsel for the
petitioners and Sri.S.C.Jainar, learned counsel for
respondents 1 to 3 and perused the papers.
8. The only contention which has been raised in the
above matter is that the petitioners were not brought
on record as legal heirs of deceased Guruputrappa and
therefore, the final decree is a nullity in the eye of
law.
9. As observed above, a perusal of the order sheet in
FDP No.7/2007 would indicate that the said FDP was
filed on 10.02.2007. Notice having been issued, it was
returned with an endorsement that Guruputrappa had
expired. Thus, on 18.06.2007, the matter was
adjourned to take steps to bring the legal
representatives of deceased Guruputrappa on record.
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On 30.07.2007, an application under Order XXII Rule
4 of the Code of Civil Procedure, 1908 (for short
"CPC") has been filed as regards which summons were
issued returnable by 01.10.2007. On 01.10.2007,
Sri.RGD, advocate, entered appearance for
respondents 1(a) to 1(c) therein. Notice to
respondents 1(d) and 1(e) having been served and
none having entered appearance on their behalf, they
were placed ex-parte. Notice was also directed to be
issued through Sri.RGD, Advocate, on respondents
1(d) and 1(e). Thereafter also none appeared.
10. In the meanwhile, RFA No.800/2007 had been filed by
the petitioners 1(a) and 1(e) herein, which was
dismissed on 13.11.2008. During the said period, the
final decree proceedings have been adjourned from
time to time. Once the regular first appeal came to be
dismissed, the final decree proceedings was taken up,
objections were filed by Sri.RGD, advocate, on behalf
of defendant No.1(e), which was adopted by
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defendants 1(a) to 1(c). PW1 was examined in chief
and cross-examined by Sri.RGD. After initial cross-
examination having been taken as nil, an application
was filed on behalf of defendants 1(a) to 1(c) seeking
for recalling of the said witness. Enquiry having been
completed, a Court Commissioner was appointed, his
report was taken on record, objections to the said
Court Commission was filed by Sri.RGD on
24.03.2010, the Commissioner was examined and
cross-examined by Sri.RGD, thereafter arguments of
Sri.RGD and other counsels were heard and then
orders were passed.
11. In that view of the matter, I am of the considered
opinion that the petitioners were properly and
effectively represented by their counsel, who has
conducted the entire matter as if they were on record.
Though there is some basis for the submission made
by the counsel for the petitioners that the cause title
was not amended and defendants 1(a) to 1(e) were
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not brought on record, the fact remains that they
have participated in the entire proceedings.
12. In the meanwhile, apart from the RFA filed by
petitioners 1(a) and 1(e), petitioner No.1(a) had also
filed a suit in O.S.No.374/2012 for declaration that the
final decree passed in FDP No.7/2007 on 29.01.2011
by the Principal Senior Civil Judge, Hubli, against dead
person is null and void wherein it was again contended
that the legal representatives have not been brought
on record. The Trial Court dismissed the said suit vide
its reasoned order dated 16.12.2016 after recording of
evidence. The said judgment having been challenged
in R.A.No.10/2017, the said regular appeal also came
to be dismissed on 30.07.2020 and in the meanwhile,
the present petition has been filed. The said finding of
the civil court has attained finality and cannot be
again reagitated before this court in the present
matter.
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13. The manner in which the multiple proceedings have
been filed by the petitioners would indicate that the
petitioners have simultaneously been following
different proceedings before different forums seeking
for the very same reliefs, inasmuch as when the
present petition has been filed, R.A.No.10/2017 was
still pending and the petitioners had suffered an
adverse order in O.S.No.374/2012.
14. The above manner in which the petitioners have
conducted themselves would indicate that the
petitioners have been, from the year 2006, trying to
avoid the implementation of execution of a decree
passed in a partition suit and thus deprive the
respondents herein of their benefits in the said decree.
Through the petitioners making use of the legal
process, the execution of a decree of 22.12.2006 has
been delayed even till now and the execution
proceedings is also not being taken forward on
account of the said actions taken by the petitioner.
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This abuse of the process court resorted to by the
petitioners would call for this court to impose
exemplary costs on the petitioners.
15. The second argument advanced by
Sri.H.R.Deshpande, learned counsel for the
petitioners, that there are heavy machineries, which
are located in the property and they cannot be
removed easily, is not a ground which needs to be
looked into by this court. It would be for the Execution
Court to appoint such persons as may be necessary to
dismantle or remove the machineries found on the
property if the same cannot be sold or removed by
any of the parties of their own volition. Thus, the said
ground will not hold this court any longer. In view of
the above, I pass the following:
ORDER.
i) Writ petition is dismissed.
ii) Exemplary cost of Rs.50,000/- is
imposed, payable to the respondents 1
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to 3 to be paid within a period of sixty
days from the date of receipt of certified
copy of this order.
iii) In view of disposal of the petition,
pending interlocutory applications, if
any, do not survive for consideration
and are disposed of accordingly.
Sd/-
JUDGE
