Karnataka High Court
Sri Sundarsingh Alias Sunsilsingh ... vs Sri Sanjaysingh S/O Shivasingh Rajput on 16 January, 2024
Author: V.Srishananda
Bench: V.Srishananda
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CRP No. 100104 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CIVIL REVISION PETITION NO.100104 OF 2022
BETWEEN:
SRI. SUNDARSINGH @ SUNILSINGH RAJPUT
S/O. SHIVASINGH RAJPUT,
AGED ABOUT 66 YEARS, OCC. AGRICULTURE,
R/O. 2376/9, AZAD GALLI, BELAGAVI.
...PETITIONER
(BY SRI. B.SHARANABASAWA, ADVOCATE)
AND:
1. SRI. SANJAYSINGH
S/O. SHIVASINGH RAJPUT,
AGED ABOUT 58 YEARS, OCC. AGRICULTURE,
R/O. 2376, AZAD GALLI, BELAGAVI.
2. SMT. RANJANA W/O. MANOHARSINGH PARADESI,
AGED ABOUT 68 YEARS, OCC. HOUSEHOLD,
R/O. SHANKARSETH ROAD, GEETAI BUILDING,
SAROJA
HANGARAKI NEAR SHARADHA CLINIC, PUNE,
MAHARASHTRA.
Digitally signed by
SAROJA
HANGARAKI ...RESPONDENTS
Date: 2024.01.25
11:45:50 +0530
(BY SRI. SANGRAM S.KULKARNI, ADVOCATE FOR R1;
R2 SERVED)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO, ALLOW
THIS REVISION PETITION BY SETTING ASIDE THE IMPUGNED ORDER
DATED 12.11.2021 PASSED BY THE COURT OF I ADDITIONAL
SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE AT
BELAGAVI, ON IA NO. II, IN EP NO.149/2016 VIDE ANNEXURE-C2
AND DIRECT THE LEARNED JUDGE OF THE TRAIL COURT TO
RECONSIDER THE EP NO.149/2016 A FRESH ALONG WITH ALL THE
APPLICATIONS THEREIN, IN THE INTEREST OF JUSTICE AND
EQUITY.
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CRP No. 100104 of 2022
THIS CIVIL REVISION PETITION, COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri B.Sharanabasava, learned counsel for the
Revision Petitioner and Sri Sangram S. Kulkarni, learned
counsel for the respondents.
2. The present Revision Petition is filed challenging the
Order passed by the I Additional Senior Civil Judge and CJM,
Belagavi, in Execution Petition No.149/2016 on 17.07.2021 and
19.08.2021. The Orders dated 17.07.2021 and 19.08.2021 are
culled hereunder out for ready reference.
"Order dated 17.07.2021:
Case called out. Sri MTH, Advocate for decree
holder is present. But no representation for
judgment debtors.
Case again called out at 12.00 noon. Sri MTH,
advocate for decree holder is present. But no
representation for judgment debtors. Sri MTH,
Advocate paid PF and requested to issue delivery
warrant with respect to house property which was
allotted in final decree in favour of decree holder.
Hence, issue delivery warrant with respect to house
property which was allotted in favour of decree
holder in final decree proceedings, returnable by
19.08.2021."
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"Order dated 19.08.2021:
Case called out. Received report from the
Court bailiff. Sri MTH, Advocate for decree holders
filed memo through his counsel stating that the
decree holders have taken possession of the
property, so the petition may be closed as fully
satisfied.
The JDr No.1 filed a I.A.No.2 u/O 47 Rule 1 of
CPC. For objections by 24.08.2021."
3. Learned Counsel for the Petitioner submits that, on
17.07.2021, taking note of the fact that Covid-19 pandemic
had affected the Society at large, there was a general direction
issued by the Hon'ble Apex Court as well as the High Court of
Karnataka, wherein, the Judges were not allowed to pass any
adverse orders, in the absence of the parties.
4. He further submits that, despite such general directions,
the Trial Judge issued delivery warrant by the Order dated
17.07.2021 and on 19.08.2021, the Trial Judge accepted the
report of the bailiff, whereunder, delivery of the property has
been given to the decree holder. Therefore, petitioner filed
I.A.No.2 in Execution Petition No.149/2016 to recall the Order
dated 19.08.2021 accepting the delivery warrant and closing
the execution petition, recording full satisfaction of the decree
under execution.
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5. He further submits that the said application came to be
dismissed by the Order dated 12.11.2021 and therefore, the
present Revision Petition is filed.
6. It is further contended that the parties are own brothers
and an amicable settlement could have been reached between
the parties, if I.A.No.2 was allowed and the matter was heard
by the Trial Judge on merits and sought for setting aside the
Order and permit the Revision Petitioner to proceed with the
Execution Petition on merits, by entertaining the objections of
the Revision Petitioner.
7. Per contra, Sri Sangram S. Kulkarni, learned counsel for
the respondents/decree holders contended that as on
17.07.2021, no such directions as is contended by the Revision
Petitioner were issued and Courts were allowed to function
normally. Taking note of the fact that the decree has not been
implemented which was a compromise decree passed in FDP
No.12/1991, the Trial Court rightly issued the delivery warrant
and the Court bailiff, in pursuance of the delivery warrant,
delivered the possession of the suit property to the decree
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holders which has been intimated to the Court on 19.08.2021.
Same is accepted by the Executing Court and closed the
execution petition by recording full satisfaction. As such, no
application could have been entertained by the Executing Court
vide I.A.No.2. Hence, Trial Court rightly dismissed the same by
the Order dated 12.11.2021 and sought for dismissal of the
revision petition.
8. Having heard the parties in detail and perused the
material on record including the ground that the execution
petition is a time barred petition, this Court is of the considered
opinion that once execution petition came to be closed by
accepting the delivery warrant as per the report of the bailiff,
only remedy for the revision petitioner was to file an application
under Section 144 of the Code of Civil Procedure seeking
restitution of the property, if the property has been wrongly or
unlawfully delivered to the decree holder. Such a curse was
always open to the revision petitioner.
9. Instead of filing an application under Section 144 of the
Code of Civil Procedure, Revision Petition has filed an
application under Order XLVII Rule 3 of the Code of Civil
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Procedure, for review of the order which is per se not
maintainable and rightly rejected by the executing Court.
10. Reserving liberty to the Revision Petitioner to file an
application under Section 144 of the Code of Civil Procedure,
Petition stands dismissed.
11. Time spent in this Revision Petition shall be excluded, if
an application under Section 144 of the Code of Civil Procedure,
is filed by the petitioner before the Trial Court, while computing
the limitation.
It is made clear that all contentions to be canvassed by
the parties are kept open.
Sd/-
JUDGE
kcm
