Karnataka High Court
Smt. Jayashree Shastry vs Shri.H.S Ashwathnarayan on 29 May, 2024
-1-
NC: 2024:KHC:18046
WP No. 1206 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
WRIT PETITION NO.1206 OF 2024 (GM-CPC)
BETWEEN:
1. SMT. JAYASHREE SHASTRY
AGED 69 YEARS
W/O. HANASOGE S. SHASTRI
D/O. LATE H.K. SUBBARAO
R/AT NO.453, TAYBERRY LANE
BRENTWOOD, CA 94513, USA
PRESENTLY R/AT NO.1277
2ND CROSS, KRISHNAMURTHYPURAM
CHAMARAJA MOHALLA
MYSURU-570 004.
Digitally
signed by V
MANJUSHA ...PETITIONER
BAI (BY SRI PALLAVA R., ADVOCATE)
Location:
High Court
of Karnataka
AND:
1. SHRI. H.S. ASHWATHNARAYAN
AGED ABOUT 82 YEARS
S/O LATE H.K. SUBBARAO
R/AT NO.1307, 4TH CROSS
KRISHNAMURTHYPURAM
MYSURU-570 004.
-2-
NC: 2024:KHC:18046
WP No. 1206 of 2024
2. SHRI. H.S. VENKATESH
AGED ABOUT 62 YEARS
S/O LATE H.K. SUBBARAO
R/AT NO.1277, 3RD CROSS
KRISHNAMURTHYPURAM
MYSURU-570 004.
...RESPONDENTS
(BY SRI VENKATESH R. BHAGAT, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH VIDE
COURT ORDER DATED 12.01.2024.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A
WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT,
ORDER OR DIRECTION AND QUASH THE ORDER DATED
16.11.2023 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE
AND CJM., MYSURU IN EX.NO.101/2020 ON I.A.NO.03 FILED
BY THE PETITIONER HEREIN UNDER ORDER 21 RULE 97 OF
CPC WHICH IS GIVEN HEREIN AT ANNEXURE-A, ETC.
THIS PETITION COMING ON FOR ORDERS, THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Aggrieved by the order passed on I.A.No.III by the Court
of the Principal Senior Civil Judge and C.J.M., Mysuru filed
under Order XXI Rule 97 of Code of Civil Procedure, 1908 in
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Execution petition No.101/2020, the applicant / Obstructor
therein has preferred this writ petition.
2. O.S.No.661/2010 was filed by respondent No.1 herein
against the respondent No.2 to evict the respondent No.2 from
the suit schedule property. The same has been decreed in
favour of the plaintiff therein.
3. The case of the respondent No.1 is that his late father
purchased the suit schedule property and it was his self
acquired property. That after his death, the property was
equally inherited by himself, his mother and 10 other siblings.
However, subsequently, his mother acting for herself and all
other minor siblings of respondent No.1 and other siblings who
had attained majority executed a release deed in his favour and
thereby, he became the absolute owner of the suit schedule
property. However, out of love and affection, he allowed his
mother to live in the suit schedule property till her death and
after her demise, respondent No.2 who is one of his brother
was permitted to live in the suit schedule property. However,
thereafter, respondent No.2 refused to vacate the suit schedule
property when respondent No.1 wanted the same. Hence, he
filed O.S.No.661/2010. The trial Court after a full fledged trial
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came to the conclusion that respondent No.1 is the absolute
owner of the suit schedule property and ordered respondent
No.2 to vacate the same. It is submitted that the same has
attained finality. In the meanwhile, petitioner herein had
preferred O.S.No.1750/2007, which is a partition suit in respect
of the suit schedule property. In the said suit, one of the issue
which was framed and relevant to the present case is as
mentioned herein below:-
"5. Whether the plaintiff further proves that the
alleged release of her undivided share under the
release deed dt:27.04.1971 executed in favour of
the 1st defendant with respect to the suit schedule
item No.1 property is not binding on the plaintiff
and the same is null and void?"
The same has been answered in the negative by the trial
Court. Further, the original suit filed by the petitioner herein
for partition of the property which is also the subject matter of
the instant writ petition has been dismissed, meaning thereby
that the petitioner has no right, title or interest over the same.
It is submitted that the petitioner herein has preferred a
regular appeal against the said original suit and the same is
pending. However, it is also submitted by both the counsel for
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petitioner and respondent No.1 herein that in the said regular
appeal no interim orders have been passed in favor of the
petitioner herein. The trial Court in the impugned order has
come to the conclusion that under the given facts and
circumstances of the case, the same need not be entertained
and has dismissed the same. Aggrieved by the same, the
present writ petition is filed.
4. Admittedly, the original suit filed by the petitioner for
partition and separate possession of the property has been
dismissed holding that she has no right in the property which is
also the subject matter of the writ petition. No interim
protection is granted to her in the appeal that has been filed
challenging the said judgment. Mere pendency of a regular
appeal is not a ground for the Executing Court to entertain the
application filed by the petitioner.
5. A Civil Court of competent jurisdiction after a full fledged
trial has come to the conclusion that the petitioner herein has
no right, title or interest over the suit schedule property and
the same has not been stayed by the Appellate Court is a
sufficient ground for the Executing Court not to conduct a fresh
inquiry regarding the rights of the petitioner in respect of the
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property concerned. I do not see any error in the well
reasoned order passed by the Executing Court.
6. For the aforementioned reasons, the writ petition is
hereby dismissed.
7. It is needless to state that if the petitioner were to
succeed in the appeal filed by her, she can always make
necessary claim against the property which is the subject
matter of the writ petition.
Sd/-
JUDGE
VMB
