Karnataka High Court
Smt H V Manju @ Manjula vs Sri Patel Chikkammogegowda on 6 March, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
-1-
NC: 2024:KHC:9312
WP No. 1550 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No. 1550 OF 2024 (GM-CPC)
BETWEEN:
1. SMT. H V MANJU @ MANJULA
D/O H M VEERAIAH
AGED ABOUT 38 YEARS.
2. SMT. H V SOWMYA
D/O H M VEERAIAH
AGED ABOUT 35 YEARS.
3. SMT. H V SHRUTHI
D/O H M VEERAIAH
AGED ABOUT 33 YEARS.
ALL ARE R/AT
HITTANAHALLI KOPLU VILLAGE
KIRGAVALU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT - 571 424.
...PETITIONERS
(BY SRI H J ANANDA, ADVOCATE)
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH
AND:
COURT OF
KARNATAKA
1. SRI PATEL CHIKKAMMOGEGOWDA
S/O LATE KEMPEGOWDA
AGED ABOUT 83 YEARS
HITTANAHALLI KOPLU VILLAGE
KIRGAVALU HOBLI
MALAVALLI TALUK
MANDYA DISTRICT - 571 424.
2. SRI H M VEERAIAH
S/O LATE H MANCHAIAH
AGED ABOUT 68 YEARS
HITTANAHALLI KOPLU VILLAGE
KIRGAVALU HOBLI
-2-
NC: 2024:KHC:9312
WP No. 1550 of 2024
MALAVALLI TALUK
MANDYA DISTRICT - 571 424.
...RESPONDENTS
(BY SRI. P NATARAJU, ADVOCATE FOR R1
R2 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSITITUTION OF INDIA PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 11/12/2023 PASSED BY THE COURT OF THE 1ST
ADDITIONAL CIVIL JUDGE AND JMFC, MALAVALLI IN EX. NO. 104/2015
VIDE ANNEXURE-A.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
1. This petition by the third party objectors in Execution
Case No. 104/2015 on the file of I Additional Civil Judge and
JMFC, Malavalli is directed against the impugned order dated
11.12.2023 whereby the Executing Court directed delivery warrant
in favour of respondent No. 1 - decree holder.
2. A perusal of the material on record will indicate that
respondent No. 1 - decree holder instituted the suit in O.S. No.
288/2011 for specific performance and other reliefs against
respondent No. 2 - judgment debtor in relation to suit schedule
immovable property. The said suit was decreed in favour of
respondent No.1 - decree holder by the Executing Court vide
judgment and decree dated 30.08.2013.
NC: 2024:KHC:9312
3. Aggrieved by the same, respondent No.2 - judgment
debtor filed an appeal in R.A. No. 47/2014 which was dismissed by
the first appellate Court by judgment and decree dated 22.07.2017.
Aggrieved by the said judgment and decree passed by the
Executing Court and first appellate Court, respondent No.2 -
judgment debtor preferred an appeal in R.S.A. No. 1846/2017
which was dismissed by this Court vide judgment and decree dated
15.11.2017 thereby confirming the said judgments and decrees
passed by the Executing Court and the first appellate Court.
4. Meanwhile, in the instant execution proceedings,
petitioners who are none other than the daughters of judgment
debtor - Sri. H.M. Veeraiah filed an application under Order XXI
Rules 97, 98 and 101 of CPC on 12.01.2024 as well as an
application under Section 151 of CPC. It is the grievance of the
petitioners that despite the said applications being pending
consideration, the Executing Court has proceeded to pass the
impugned order directing issuance of delivery warrant and as such,
petitioners are before this Court by way of the present petition.
NC: 2024:KHC:9312
5. A perusal of the aforesaid material on record would
indicate that respondent No. 1 - decree holder has not filed any
objections to the applications filed by the petitioners - third party
objectors which would necessarily have to be decided by the
Executing Court in accordance with law. Under these
circumstances, without considering and passing orders on the
applications filed by the petitioners under Order XXVII Rules 97, 98
and 101 of CPC on 12.01.2024 as well as application under
Section 151 of CPC, the Executing Court clearly committed an
error in directing issuance of delivery warrant by passing the
impugned order which deserves to be set aside and Executing
Court be directed to consider and pass appropriate orders on the
applications filed by the petitioners in accordance with law.
6. In the result, the following;
ORDER
a. Petition is allowed.
b. The impugned order dated 11.12.2023 passed in
Executing Court insofar as it relates to directing
issuance of delivery warrant in favour of the decree
holder is hereby set aside.
NC: 2024:KHC:9312
c. The Executing Court is directed to consider and pass
appropriate orders on the applications filed by the
petitioners under Order XXVII Rules 97, 98 and 101 of
CPC on 12.01.2024 as well as the application under
Section 151 of CPC after providing an opportunity to
both the parties and in accordance with law.
d. Since the execution proceedings arise out of the suit of
the year 2011, I deem to just and appropriate to
exercise my jurisdiction under Article 227 of the
Constitution of India and direct the Executing Court to
dispose off the applications as expeditiously as
possible.
Sd/-
JUDGE
LRS
