Karnataka High Court
Sri Pillappa M vs Sri Munikaverappa on 28 June, 2024
-1-
NC: 2024:KHC:24208
WP No.39790 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.39790 OF 2018 (GM-CPC)
BETWEEN:
1. SRI. PILLAPPA .M
S/O LATE MUNIYAPPA
AGED ABOUT 65 YEARS.
2. SRI. MUNIYELAPPA .M
S/O LATE MUNIYAPPA
AGED ABOUT 63 YEARS.
Digitally signed
by RUPA V BOTH ARE R/AT
Location: HIGH MUTHANALLUR VILLAGE
COURT OF SARJAPURA HOBLI, ANEKAL TALUK
KARNATAKA BENGALURU URBAN DISTRICT-562106.
...PETITIONERS
(BY SRI. PRAKASH T. HEBBAR, ADV.,)
AND:
SRI. MUNIKAVERAPPA
S/O LATE YELLAPPA
AGED ABOUT 60 YEARS
R/AT MUTHANALLUR VILLAGE
SARJAPURA HOBLI, ANEKAL TALUK
BENGALURU URBAN DISTRICT.
...RESPONDENT
(BY SRI. YOGESH M, ADV., FOR
SRI. RAMESH ANANTHAN, ADV.,)
-2-
NC: 2024:KHC:24208
WP No.39790 of 2018
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
IMPUGNED ORDER DTD:28.7.2018 PASSED BY THE HON'BLE
SENIOR CIVIL JUDGE AND JMFC AT ANEKAL IN APPLICATION
U/O.XXI.R.97 R/W 151 OF CPC IN EXECUTION NO.24/2009 AS
PER ANNEXURE-A. GRANT AN INTERIM ORDER TO STAY OF
DISPOSSESSION AND/OR STAY OF ALL FURTHER
PROCEEDINGS PURSUANT TO THE IMPUGNED ORDER
DTD:28.7.2018 PASSED IN EXECUTION NO.24/2009.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The judgment debtors have filed this writ petition
challenging the order dated 28.07.2018 passed by the Civil
Judge (Sr. Dn.) and JMFC, Anekal on an application filed under
Order 21 Rule 97 read with Section 151 of the Code of Civil
Procedure, 1908 (hereinafter referred to as 'the Code') in
Ex.No.24/2019 wherein the application filed by the petitioners
was rejected.
2. Heard Sri.Prakash T.Hebbar, learned counsel appearing
for the petitioners and Sri.Yogesh M., learned counsel
appearing for Sri.Ramesh Ananthan, learned counsel for the
respondent.
NC: 2024:KHC:24208
3. Learned counsel for the petitioners submits that the
respondent herein has filed O.S.No.288/2003 which was later
re-numbered as O.S.No.614/2006 before the Court of Senior
Division Civil Judge, Bangalore seeking for declaration and
possession in respect of property bearing khata No.181/2. The
present petitioners were defendant Nos.1 and 2 in the said suit.
The Trial Court decreed the suit exparte on 28.07.2009. It is
submitted that the respondent herein has filed Ex.No.24/2009
before the Execution Court and the Execution Court has issued
the delivery warrant to take possession of the suit schedule
property from the petitioners on 20.10.2016. Thereafter, the
petitioners moved an application under Order XXI Rule 97 read
with Section 151 of the CPC and another application under
Order IX Rule 7 read with Section 151 of the CPC which came
to be rejected by the impugned order. It is further submitted
that the petitioners also filed Misc.P.No.30/2018 under Order IX
Rule 13 read with Section 151 of the CPC seeking to set aside
the exparte judgment and decree by permitting the petitioners
to participate in the suit. It is also submitted that the
Execution Court, without appreciating the fact that
Misc.P.No.30/2018 is pending, proceeded to reject the
NC: 2024:KHC:24208
applications filed by the petitioners by directing to handover the
possession of the suit schedule property to the respondent
herein. If the property is handed over to the respondent, the
very miscellaneous petition filed by the petitioners would
become infructuous. It is submitted that in the suit, the
respondent herein has wrongly shown the property number of
the suit schedule property bearing old Khaneshumari No.181/2
as new Khaneshumari No.248 which belongs to the petitioners,
however the new Khaneshumari number of the property of the
respondent is No.249. On false representation, suit was filed
and exparte decree has been obtained by the respondents,
hence he seeks to set aside the impugned order of the
Execution Court by directing the Trial Court to dispose of the
Misc.P.No.30/2018 expeditiously so that the dispute between
the parties can be resolved as per law.
4. Per contra, Sri.Yogesh M., learned counsel appearing
for the respondent opposed the writ petition and submits that
though notice was served on the petitioners in the suit,
deliberately they had not participated in the proceedings and
even in the execution petition, though notice was served, they
NC: 2024:KHC:24208
remained absent. Only belatedly, they have moved
Misc.P.No.30/2018 seeking to set aside the exparte decree only
with an intention to defeat the rights of the respondent.
Hence, he seeks dismissal of the petition.
5. Heard the learned counsel for the petitioners, learned
counsel for the respondent and perused the material available
on record.
6. The parties to the proceedings does not dispute that
the petitioners were defendants in O.S.No.614/2006 and the
respondent in this petition was the plaintiff in the said suit. The
suit came to be decreed exparte. It is also submitted that the
petitioners have filed Misc.P.No.30/2018 seeking to set aside
the exparte decree and the same is pending before the same
Court. On merits, the petitioners are contending that the
respondent / plaintiff has shown wrong property in the schedule
and got the decree. Prima facie, it is evident from the khata
extract produced at Annexure-F. Be that as it may, without
going into the merits of the suit, it would be just and
appropriate to direct the Trial Court to dispose of
NC: 2024:KHC:24208
Misc.P.No.30/2018 expeditely. If the Execution Court is
allowed to proceed pending Ex.No.24/2009, then
Misc.P.No.30/2018 would become infructuous and great
injustice would cause to the petitioners who have failed to
participate in the suit. Therefore, ends of justice would be met
if the impugned order dated 28.07.2018 is set aside by
directing the Civil Judge (Sr. Dn.) and JMFC, Anekal to dispose
of Misc.P.30/2018 within a time frame and the Execution Court
is restrained from proceeding further till the disposal of
Misc.P.No.30/2018.
7. For the aforementioned reasons, I proceed to pass the
following:
ORDER
(i) The writ petition is allowed.
(ii) Impugned order dated 28.07.2018 passed by the Civil
Judge (Sr. Dn.) and JMFC, Anekal on an application filed in
Ex.No.24/2009 is set aside.
(iii) The Trial Court is directed to dispose of
Misc.P.No.30/2018 within a period of eight months.
NC: 2024:KHC:24208
(iv) The proceedings in Ex.No.24/2009 are kept in
abeyance till disposal of Misc.P.No.30/2018.
Sd/-
JUDGE
RV
