Karnataka High Court
Sri M S Kashinath vs S B M Employees House Building on 9 January, 2024
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NC: 2024:KHC:1078
WP No. 10628 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
WRIT PETITION NO. 10628 OF 2017 (GM-CPC)
BETWEEN:
1. SRI. .M.S. KASHINATH,
S/O M.S. SUBBA RAO,
SINCE DEAD BY HIS LR:
SRI .M.S. DINESH, S/O M.S. SUBBA RAO,
AGED 57 YEARS,
R/A NO.19/2, NARASIMHA APARTMENTS,
FLAT NO.103, 4TH MAIN, 8TH CROSS,
MALLESHWARAM, BANGALORE - 560 003
...PETITIONER
(BY SRI: NITISH K.N., ADVOCATE)
AND:
1. S.B.M EMPLOYEES HOUSE BUILDING
CO-OPERATIVE SOCIETY,
C/O S.B.M. MYSORE BRANCH,
P.O.NO.7, ASHOKA ROAD,
MYSORE - 570 001.
Digitally BY ITS SECRETARY.
signed by 2. S.B.M EMPLOYEES HOUSE BUILDING
PAVITHRA N
CO-OPERATIVE SOCIETY,
Location: high C/O S.B.M. MYSORE BRANCH.
court of P.O.NO.7, ASHOKA ROAD,
karnataka
MYSORE - 570 001.
BY ITS PRESIDENT.
...RESPONDENTS
(BY SRI: MAYANNA B.L., ADVOCATE FOR R1 & 2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DATED 9.1.2017 AT ANNEX-C PASSED BY THE LEARNED PRL. I CIVIL
JUDGE AND JMFC IN EX.NO.336/2014 AND DIRECT RESPONDENTS TO
EXECUTE SALE DEED CONCERNING THE SITE BEARING NO. 186, B-
BLOCK IN BOGADI LAYOUT, MYSORE MEASURING 519.6 SQUARE
METERS AND ETC.,
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NC: 2024:KHC:1078
WP No. 10628 of 2017
THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING -
B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is impugning the order dated 09.01.2017
passed by the learned II Additional First Civil Judge and JMFC
at Mysore in Ex.No.336/2014 accepting the objections raised by
the Judgment debtors (hereinafter referred to as JDR for
brevity)/respondent and directing him to refund an amount of
Rs.65,000/- with interest at 18% PA.
2. Heard Sri. Nitish K.N., learned counsel for the
petitioner and Sri. Mayanna B.L., learned counsel for the
respondents. Perused the materials available on record.
3. Learned counsel for the petitioner submits that
petitioner is the allottee of the site in question by the
respondents vide allotment letter dated 20.11.1998. Required
sale deed was not executed by the Co-operative society.
Therefore, proceedings were initiated before the Joint Registrar
of Co-operative Societies, Mysore (hereinafter referred to as
'JRCS' for brevity) in proceedings No.JRM/DDS No.641/2006-
07. The same was accepted by the JRCS by passing the order
dated 12.08.2010, directing the respondents to execute the
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sale deed in respect of site in question. However, it is stated
that if in the event of the site already registered in favour of
third party, to allot and register an alternative site in the name
of the petitioner and thirdly an option was given to the
respondent to refund the amount of Rs.65,000/- with interest
at 18% Per Annum. The said order has reached finality. As the
same was never challenged by the respondents. Since the sale
deed was not executed by the respondent, the order passed by
the JRCS being decree of the Civil Court is put into execution in
Ex.No.336/2014.
4. Learned counsel submitted that one Smt.Siddamma
filed an application under Order 21 Rule 97 of CPC claiming to
be the allottee of site in question. According to the contention
taken by the applicant, she was allotted with the site by
respondents on 30.05.2005. The said application filed by
Siddamma was rejected by the executing Court. However, the
impugned order was passed directing the respondent to pay the
amount of Rs.65,000/- with interest at 18% without exhausting
the direction of JRCS to register the sale deed in respect of site
in question or at least to allot an alternative site. Therefore, the
impugned order is challenged by petitioner herein.
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5. Learned counsel for the petitioner submits that till
today the site in question is available for registration in favour
of petitioner. No sale deed what so ever is executed in favour of
any third party. Under such circumstances, he prays for
allowing the petition.
6. Per contra, learned counsel for the respondents
opposing the petition submitted that the petitioner is a
defaulter as he has was not paid the entire sale consideration
amount. Therefore, the site in question was allotted in favour of
Smt. Siddamma on 30.05.2005. The possession of the property
was also handed over in her favour. Therefore, the site is not
available for registration in the name of the petitioner. Taking
into consideration the facts and circumstances, the executing
Court has passed the impugned order. There are no reasons to
interfere in the same. Accordingly, prays for dismissal.
7. According to the petitioner he is the allottee of site
in question vide allotment letter dated 20.11.1998. The JRCS,
Mysore passed the order dated 12.08.2010, directing the
respondents to allot and register the site in favour of the
petitioner. If the same is already registered in favour of a third
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party, to allot and register an alternative site in favour of the
petitioner and thirdly, if no site is available for allotment and
registration, refund the amount of Rs.65,000/- with interest at
18% Per Annum. Admittedly, this order of JRCS was never
challenged by the respondents.
8. Now it is the contention of the respondents that the
site in question was allotted in favour of Smt. Siddamma on
30.05.2005 and the possession of the property was also
handed over in her favour. It is pertinent to note that such
contention raised by Smt.Siddamma by filing the application
under Order 21 Rule 97 of CPC before the executing Court was
rejected by the very Court. However, the impugned order is
passed by observing that the site in question is already allotted
in favour of Smt.Siddamma and therefore, respondent is liable
to refund the amount of Rs.65,000/- with interest at 18% Per
Annum.
9. The Trial Court has not considered the award
passed by JRCS to the effect that the site in question is to be
allotted and registered in favour of the petitioner, if the same is
not already registered in favour of any third party. According to
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the petitioner, the site in question is not registered in favour of
any other person till date. It is also not the contention of
respondent that site in question is already registered in favour
of either Smt.Siddamma or any other person. Under such
circumstances, the executing Court could not have proceeded
to direct the respondents to refund the amount of Rs.65,000/-
with interest at 18% P.A., when it has already rejected the
claim of the subsequent allotee Smt. Siddamma. The petitioner
being the decree holder of the award dated 12.08.2010, is
entitled for registration of the sale deed in respect of the site in
question on priority. Therefore, I find considerable force in the
contention taken by the petitioner. Accordingly, I proceed to
pass the following:
ORDER
i. Writ petition is allowed.
ii. The impugned order dated 09.01.2017 passed
in Ex.No.336/2014 on the file of the learned II
Additional First Civil Judge and JMFC at
Mysore is set aside.
Sd/-
JUDGE
