Karnataka High Court
Smt Balawwa W/O Mallappa Waddatti vs Suresh S/O Channappa Gulaganji on 4 July, 2024
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W.P.NO.103003 OF 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 04TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 103003 OF 2024 (GM-CPC)
BETWEEN
1. SMT. BALAWWA W/O. MALLAPPA WADDATTI,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O. CHIKKOPPA,
TQ: DIST: GADAG-591102.
2. SMT. GANGAVVA W/O. SIDDAPPA HARIHAR,
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O. KATAGIYAVARA ONI,
LAKKUNDI, TQ: DIST: GADAG-582115.
...PETITIONERS
(BY SRI. J.S. SHETTY, ADVOCATE)
AND
SURESH S/O. CHANNAPPA GULAGANJI,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O. CHIKKOPPA,
TQ: DIST: GADAG-591102.
...RESPONDENT
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI TO ORDER DATED 9-2-2023 PASSED IN EXECUTION
PETITION NO.78/2022 ON THE FILE OF III ADDITIONAL CIVIL JUDGE
AND JMFC GADAG, THE ORDER DATED 7-8-2023 PASSED IN
EXECUTION PETITION NO. 78/2022 ON THE FILE OF III ADDITIONAL
CIVIL JUDGE AND JMFC GADAG AND ALSO THE ORDER DATED 5-12-
2023 PASSED IN EXECUTION PETITION NO.78/2022 BY THE III
ADDITIONAL CIVIL JUDGE AND JMFC GADAG, THE COPY OF THE
ORDER SHEET OF WHICH HAS BEEN PRODUCED HEREWITH AT
ANNEXURE-A; IT MAY BE DECLARED THAT THE SALE DEED DATED
13-11-2023 SAID TO HAVE BEEN EXECUTED BY THE COMMISSIONER
IN PURSUANCE OF THE ORDER PASSED BY THE III ADDITIONAL
CIVIL JUDGE JUNIOR DIVISION GADAG IN FAVOUR OF THE
RESPONDENT HEREIN THE COPY OF WHICH HAS BEEN PRODUCED
HEREWITH AT ANNEXURE-B, IS NULL AND VOID AND
CONSEQUENTLY BE SET ASIDE.
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W.P.NO.103003 OF 2024
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 03.07.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The captioned writ petition has been filed by the judgment
debtors challenging two specific orders: the one dated
07.08.2023, which overruled their objections, and the one
dated 05.12.2023, which accepted the report of the Court
Commissioner along with the copy of the sale deed.
2. The background of the case reveals that the respondent-
plaintiff had filed a suit for specific performance of a
contract, registered as O.S.No.93/2014. This suit was
decided in favour of the plaintiff, granting the relief of
specific performance. Following this decree, the plaintiff
initiated execution proceedings in E.P.No.78/2018 to
enforce the decree.
3. The petitioners raised objections during the execution
proceedings, arguing that the decree could not be
enforced due to an appeal pending in R.A.No.98/2022.
They also contended that without the demarcation of the
suit land by metes and bounds and the preparation of an
W.P.NO.103003 OF 2024
11-E sketch, the decree could not be executed.
Furthermore, they argued that the appointment of a Court
Commissioner to enforce the decree was premature and
requested the court to reject the application for such an
appointment.
4. After hearing the arguments from the petitioners' counsel
and reviewing the orders dated 07.08.2023 and
05.12.2023, as well as the judgments cited by the
petitioners, it was necessary to examine whether the
respondent-decree holder's failure to deposit the balance
sale consideration of Rs.2,00,000/- by 01.11.2022
invalidated the appointment of the Court Commissioner
and the directive to prepare the 11-E sketch. The
petitioners argued that the Executing Court was not
authorized to go beyond the stipulations of the decree,
which required the balance sale consideration to be
deposited within three months from the date of judgment.
The petitioners also argued that the Executing Court had
not given them adequate opportunity to present their
case. They claimed that the court had proceeded with the
matter without properly serving notice to the judgment
W.P.NO.103003 OF 2024
debtors, thus vitiating the entire proceedings. Additionally,
they raised an objection regarding a procedural error,
asserting that they were not served a copy of the draft
sale deed, which they argued rendered the sale deed
invalid.
5. Another significant argument from the petitioners was that
the land to be sold was only a portion of a larger parcel.
They contended that without a proper partition by metes
and bounds, the Executing Court's directive to prepare an
11-E sketch was not legally sustainable. Therefore, they
argued that the sale deed could not be executed through a
Court Commissioner based on an incomplete 11-E sketch.
6. Upon examining the petitioners' objections, this court
noted that the main objection was filed on 27.02.2023,
whereas the draft sale deed had been furnished to the
Executing Court earlier, on 15.02.2023. The Executing
Court had identified discrepancies in the draft sale deed
and accordingly appointed the ADLR to issue an 11-E
sketch and demarcate the land. The draft sale deed was
then secured on 27.03.2023, and the matter was
adjourned for further verification.
W.P.NO.103003 OF 2024
7. The records indicated that the petitioners' counsel was
present on all relevant dates, while the petitioners
themselves remained absent. The records reveal that the
petitioners never objected to the execution proceedings on
the basis that the draft sale deed was not furnished to
them. Their primary objections centered on the pending
appeal and the lack of proper land demarcation.
8. The petitioners' argument regarding the non-deposit of
the balance sale consideration within the stipulated time to
be without merit. The appropriate course of action for the
judgment debtors would have been to seek relief under
Section 28 of the Specific Relief Act, 1963, which allows
for the rescission of the contract. The petitioners failed to
pursue this remedy, and their current argument appeared
to be an afterthought. Additionally, the argument that
petitioner No.2 had not been given notice cannot be
acceded to, noting that both petitioners were represented
by the same counsel throughout the proceedings. This
court is of the view that any objections to the
enforceability of the decree should have been raised
before the appointment of the Commissioner and the
W.P.NO.103003 OF 2024
execution of the sale deed. Once the sale deed is
executed, it merges with the decree, and no further
objections can be entertained.
9. For these reasons, the writ petition is found to be devoid
of merit and is accordingly dismissed. All pending
interlocutory applications are disposed of.
Sd/-
JUDGE
YAN
