Karnataka High Court
Shrikant S/O Mallappa Hanje vs Bhupal S/O Mallappa Hanje on 29 May, 2024
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NC: 2024:KHC-D:7137
WP No. 111010 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 111010 OF 2014 (GM-CPC)
BETWEEN:
SHRIKANT S/O. MALLAPPA HANJE,
AGE: 75 YEARS, OCC: BUSINESS,
R/O: SHASTRI NAGAR, BELGAUM,
TQ & DIST: BELGAUM.
...PETITIONER
(BY SRI. RAVIRAJ C. PATIL, ADVOCATE)
AND:
1. BHUPAL S/O. MALLAPPA HANJE,
(SINCE DECEASED, BY HIS LR'S)
1A. SMT. SHOBHA W/O. BHUPAL HANJI,
AGE: 58 YEARS, OCC: HOUSEWIFE,
R/O: 315, KHADEBAZAAR,
SHAHAPUR, BELAGAVI-590003.
1B. SMT. VAISHALI D/O. BHUPAL HANJI,
YASHAVANT
NARAYANKAR AGE: 36 YEARS, OCC: HOUSEWIFE,
R/O: 315, KHADEBAZAAR,
Digitally signed by
YASHAVANT
NARAYANKAR SHAHAPUR, BELAGAVI-590003.
Location: HIGH
COURT OF
KARNATAKA,
DHARWAD BENCH
1C. SMT. PRIYANKA
W/O. MAHESH BHOGULKAR,
AGE: 32 YEARS, OCC: HOUSEWIFE,
R/O: 315, KHADEBAZAAR,
SHAHAPUR, BELAGAVI-590003.
1D. SHRI BAHUBALI S/O. BHUPAL HANJI,
AGE: 24 YEARS, OCC: BUSINESS,
R/O: 315, KHADEBAZAAR,
SHAHAPUR, BELAGAVI-590003.
2. SUDHA W/O. MAHAVEER HANJE,
AGE: 59 YEARS,
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NC: 2024:KHC-D:7137
WP No. 111010 of 2014
OCC: HOUSEHOLD WORK,
R/O: 1ST CROSS, TILAKWADI,
BELGAUM, TQ & DIST: BELGAUM.
3. SUDHIR S/O. MAHAVEER HANJE,
AGE: 41 YEARS, OCC: BUSINESS,
R/O: 1ST CROSS, TILAKWADI,
BELGAUM, TQ & DIST: BELGAUM.
4. PRAMOD S/O. MAHAVEER HANJE,
AGE: 39 YEARS, OCC: BUSINESS,
R/O: 1ST CROSS, TILAKWADI,
BELGAUM, TQ & DIST: BELGAUM.
5. SUJATA W/O. VIJAY KARANDE,
AGE: 36 YEARS,
OCC: HOUSEHOLD WORK,
R/O: 1193, SUKH SHANTI NIWAS,
POTNIS BOL, KHARI CORNER,
KOLHAPUR, TQ & DIST: KOLHAPUR.
...RESPONDENTS
(BY SRI. N.G. RASALKAR, ADV. FOR R1(A) TO (D);
SRI. SANGRAM S. KULKARNI, ADV. FOR R3 & R4;
NOTICE TO R2 & R5 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR DIRECTION
AND SET ASIDE THE ORDER PASSED BY THE I ADDL SENIOR CIVIL
JUDGE BELGAUM DATED 23.10.2014 AND ALSO 03/11/2014 IN
E.P.NO.62/2013, PRODUCED AND MARKED AT ANNEXURE-A AND A1.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:7137
WP No. 111010 of 2014
ORDER
1. Captioned petition is filed by Judgment Debtor No.2, who
was defendant No.1 in the partition suit, assailing the
orders of the Executing Court dated 23.10.2014 and
03.11.2014 as per Annexures - A and A1.
2. Heard the learned counsel for petitioner, learned counsel
appearing for respondent No.1 and also learned counsel
appearing for respondent No.3 and 4.
3. On meticulous examination of the records, fundamentally
there is some ambiguity in the final decree drawn in FDP
No. 29/1995. The present petitioner/defendant No.1,
respondent No.1/defendant No.2 and respondent
No.2/plaintiff accepted the Proposal No.3 and accordingly
final decree was drawn. A sketch of the property situated
at Chennamma Nagar was also annexed as a part of final
decree drawn in FDP No.29/1995.
4. The present dispute is only in respect of Channamma
Nagar property and the dispute is only between defendant
No.1 and 2. The petitioner/judgment debtor No.2 (who
was arrayed as defendant No.1) reasonably apprehends
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that respondent No.1, on the strength of commissioner's
report secured by the Executing Court in the present
execution proceedings, is laying a claim over a portion
that was allotted to petitioner i.e. Part-A in Channamma
Nagar. The final decree drawn by the FDP Court of course
has led to some confusion insofar as portion allotted to the
present petitioner/judgment debtor No.2 (defendant No.1
in the partition suit) and the respondent No.1/Decree
Holder (defendant No.2 in the partition suit). However, the
objections tendered by the present respondent No.1 in
execution petition filed by respondent No.2 (plaintiff in
partition suit in E.P.No.117/2011) would clinch the entire
controversy that has arisen for consideration between the
petitioner and respondent No.1. Therefore, this Court
deems it fit to take cognizance of paragraphs 1 and 2 of
the objection filed by respondent No.1 in executing
proceedings initiated by the plaintiff in E.P.No.117/2011.
The same is culled out, which reads as under:
1) The contents of the Execution Petition are
all false specifically denied by this Judgment
Debtor No.2 except the averments, which are
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specifically admitted by this Judgment Debtor
No.2.
2) The J.D.No.2 is allotted two kitchen rooms,
half portion of the bathroom and one store
room in H.No.11/A situated at Channamma
Nagar, which is not at all convenient and
useful to J.D.No.2 and his family residence.
5. This copy of objection tendered by respondent No.1 in
plaintiff's execution petition is also accompanied by a
sketch pertaining to Channamma Nagar property. If
paragraph 2 of the objection is taken into consideration, it
is clearly evident that the northern portion is allotted to
petitioner, and the southern portion, which is referred as
Part-B in the sketch (comprising of 2 kitchens, one store
room, half portion of bathroom, one living room on the
extreme southern side), is allotted to respondent No.1.
This factual matrix of allocation of portion allotted to
present petitioner and respondent No.1 is admitted by
respondent No.1 at an undisputed point of time i.e.
28.01.2012, which is culled out supra.
6. If respondent No.1 has accepted the southern portion, the
Executing Court is bound to take cognizance of the
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objections tendered by respondent No.1 in
E.P.No.117/2011 and is also bound to take cognizance of
the sketch furnished along with the objections to the main
petition in E.P.No.117/2011. The Executing Court by
appointing a fresh commissioner in execution proceedings
has virtually exceeded its jurisdiction. Any attempt to
secure a fresh Commissioner Report amounts to sitting
over a final decree drawn by a competent Court, which has
attained finality.
7. In the light of these significant details, the captioned
petition is liable to be allowed with certain directions to the
Executing Court. Hence, the following:
ORDER
i) The writ petition stands allowed.
ii) The Executing Court is hereby directed to
examine the objections tendered by respondent
No.1/Decree Holder in Ex.P117/2011 and is also
bound to take cognizance of paragraph 2 of the
objections and the sketch furnished by
respondent No.1 at an undisputed point of time.
The objection tendered by respondent No.1 is
self-explanatory in nature and therefore, there
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is no confusion or ambiguity as to which portion
was allotted to petitioner and respondent No.1
in FDP No.29/1995.
iii) Referring to these significant details, the
Executing Court is required to restrict its scope
of enquiry and enforce the decree passed in FDP
No.29/1995.
Sd/-
JUDGE
