Karnataka High Court
Kanthamma vs Smt. Narayanamma on 22 October, 2024
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NC: 2024:KHC:42435
WP No. 2234 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
WRIT PETITION NO. 2234 OF 2020 (GM-CPC)
BETWEEN:
1. KANTHAMMA
W/O LATE MANCHEGOWDA @ ADIYA,
AGED ABOUT 55 YEARS,
R/O SUBBANAHALLI VILLAGE,
CA KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT,
MANDYA-571 422
2. S.M. MANCHALINGEGOWDA
AGED ABOUT 30 YEARS,
S/O LATE MANCHEGOWDA @ ADIYA,
R/O SUBBANAHALLI VILLAGE,
CA KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT,
Digitally signed
by MANDYA-571 422
MARKONAHALLI
RAMU PRIYA
Location: HIGH
COURT OF 3. SINGRIGOWDA
KARNATAKA
S/O LATE DASEGOWDA,
AGED ABOUT MAJOR,
R/O SUBBANAHALLI VILLAGE,
CA KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT,
MANDYA-571 422
4. BALLEGOWDA @ BILLEGOWDA
S/O LATE NINGEGOWDA,
AGED ABOUT MAJAR,
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WP No. 2234 of 2020
R/O SUBBANAHALLI VILLAGE,
CA KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT,
MANDYA-571 422
5. PREMA
D/O LATE NINGEGOWDA,
AGED ABOUT MAJOR,
R/O HALUVADI VILLAGE,
KOTHATHI HOBLI,
MANDYA TALUK,
MANDYA DISTRICT,
MANDYA-571 403
6. MANGALAMMA @ MANGALA
D/O LATE NINGEGOWDA,
AGED ABOUT MAJOR,
R/O.ANCHEDODDI,
MALAVALLI TALUK,
MANDYA DISTRICT,
MANDYA-571 430
7. NAGESH
S/O LATE RAMEGOWDA,
AGED ABOUT MAJOR,
R/O SUBBANAHALLI VILLAGE,
CA KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT,
MANDYA-571 422
8. DEVAMMA
W/O LATE RAMEGOWDA,
AGED ABOUT MAJOR,
R/O SUBBANAHALLI VILLAGE,
CA KERE HOBLI,
MADDUR TALUK,
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WP No. 2234 of 2020
MANDYA DISTRICT,
MANDYA-571 422
...PETITIONERS
(BY SRI. P. MAHESHA, ADVOCATE)
AND:
1. SMT. NARAYANAMMA
W/O LATE MACHEGOWDA,
AGED ABOUT 74 YEARS,
R/O SUBBANAHALLI VILLAGE,
CA KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT,
MANDYA-571 422
2. MANCHEGOWDA S.M.,
S/O MANCHEGOWDA,
AGED ABOUT 59 YEARS,
R/O SUBBANAHALLI VILLAGE,
CA KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT,
MANDYA-571 422
3. NINGEGOWDA
S/O MANCHEGOWDA,
AGED ABOUT 57 YEARS,
R/O SUBBANAHALLI VILLAGE,
CA KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT,
MANDYA-571 422
4. CHIKKA NINGEGOWDA
S/O MANCHEGOWDA,
AGED ABOUT 50 YEARS,
R/O SUBBANAHALLI VILLAGE,
CA KERE HOBLI, MADDUR TALUK,
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WP No. 2234 of 2020
MANDYA DISTRICT,
MANDYA-571 422
5. GOWRAMMA
W/O KEMPEGOWDA,
AGED ABOUT 4 YEARS,
R/O HONNEMADU,
DUDDA HOBLI,
MANDYA TALUK,
MANDYA DISTRICT,
MANDYA-571 431
6. CHIKKATHAYAMMA
W/O BASAVARAJ,
AGED ABOUT 40 YEARS,
R/O GORAVALI VILLAGE,
DUDDA HOBLI,
MANDYA TALUK, MANDYA DISTRICT,
MANDYA 571 405
7. SAKAMMA
W/O HONNAPPA,
AGED ABOUT 38 YEARs,
R/O. H.MALLIGERE,
MANDYA TALUK,
MANDYA DITRICT,
MANDYA-571 402
8. SMT. VIJAYA
W/O SHIVARAM,
AGED ABOUT 40 YEARS,
R/O GUTHALU,
MANDYA TALUK,
MANDYA DISTRICT,
MANDYA-571 401
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WP No. 2234 of 2020
9. SMT. NINGAMMA
AGED ABOUT 60 YEARS,
W/.O. LATE MANCHEGOWDA,
R/O SUBBANAHALLI VILLAGE,
CA KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT,
MANDYA-571 422
10. MANCHEGOWDA
S/O LATE MANCHEGOWDA,
AGED ABOUT 50 YEARS,
R/O SUBBANAHALLI VILLAGE,
CA KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT,
MANDYA-571 422
11. SHIVARAJ
S/O LATE MANCHEGOWDA,
AGED ABOUT 45 YEARS,
R/O SUBBANAHALLI VILLAGE,
CA KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT,
MANDYA-571 422
12. PUTTEGOWDA
S/O LATE MANCHEGOWDA,
AGED ABOUT 50 YEARS,
R/O SUBBANAHALLI VILLAGE,
CA KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT,
MANDYA-571 422
13. SMT. PADMA
W/O LATE YOGESH,
AGED ABOUT 35 YEARS,
R/O KANDEGALA,.
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MALAVALLI TALUK,
MANDYA DISTRICT,
MANDYA-571 430
14. JAYASHEELA
W/O PUTTAMADEGOWDA,
AGED ABOUT 43 YEARS,
R/O KARAKARAHALLI VILLAGE,
CA KERE HOBLI,
MADDUR TALUK,
MANDYA DISTRICT,
MANDYA-571 422
15. THAYAMMA
W/O KENCHAPPA,
AGED ABOUT 46 YEARS,
R/O HITTANAHALI VILLAGE,
KIRUGAVALU HOBLI,
MALAVALLI TALUK,
MANDYA DISTRICT,
MANDYA-571 424
16. NAGESH
S/O LATE BASAVEGOWDA,
AGED ABOUT MAJOR,
R/O SUBBANAHALLI VILLAGE,
CA KERE HOBLI, MADDUR TALUK,
MANDYA DISTRICT,
MANDYA-571 422
17. DEVAMMA
W/O LATE BASAVEGOWDA,
AGED ABOUT MAJOR,
R/O SUBBANAHALLI VILLAGE,
CA KERE HOBLI,
MADDUR TALUK,
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MANDYA DISTRICT,
MANDYA-571 422
...RESPONDENTS
(BY SMT. ANUSHA NANDISH, ADVOCATE FOR
SRI. GAURAV G.K., ADVOCATE FOR R1 TO R4, R6, R7
AND R8;
R5(A), R5(B), R5(C), R9, R10, R11(A), R11(B),
R12, R13,
R14, R16, R17 ARE SERVED;
V/O DATED 29.07.2024, NOTICE TO R15 D/W)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER PASSED BY THE LEARNED II ACJ AND JMFC, MADDUR
IN EX.P.NO.77/2011 DATED 16.11.2019 ON IA FILED U/O 6
RULE 17 VIDE ANNEXURE-E AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R. NATARAJ
ORAL ORDER
The Judgment Debtors in E.P.No.77/2011 pending
consideration before the Civil Judge (Junior Division) ,
Maddur, have filed this petition, challenging an Order
dated 16.11.2019, by which an application filed by the
decree-holder to amend the execution petition was
allowed.
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2.(i) A suit in O.S.No.58/1975 (renumbered as
O.S.No.24/1980) was filed for a declaration that the
plaintiff was the joint owner of the suit schedule properties
and for partition and separate possession of his share.
The said suit was decreed. The said decree was
challenged by the decree-holder as well as defendants in
R.A.No.51/1999 and 52/1999. Thereafter, the appeal
filed by the defendants was allowed and the one filed by
plaintiff was dismissed. Consequent thereto, the plaintiff
filed R.S.A.Nos.1077/2002 and 1078/2002.
Co-ordinate Bench of this Court, in terms of the
Order dated 13.04.2010, allowed the appeal and held that
the plaintiff was entitled to 3/4th share in the suit schedule
properties while 1/4th share of Defendant No.1 was to be
apportioned between the Defendant Nos.3 to 8.
(ii) The L.Rs of the decree-holder filed E.P.No.77/2011 to
execute the decree passed by this Court in
R.S.A.No.1077/2002 connected with R.S.A.No.1078/2002.
In the said execution petition, the L.Rs of decree-holder
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filed a application under Order VI Rule 17 to amend the
execution petition to delete the words "3/4th share of the
Decree Holders in the suit schedule properties and replace
with "entire schedule properties with police help". The
said application was allowed in terms of the impugned
order. Being aggrieved by the Judgment and Decrees,
petitioners have filed this petition.
3. Learned counsel for the Judgment Debtors contended
that in the first instance, the Execution Petition itself was
not maintainable as no steps were taken to draw up a final
decree. He contends that in the absence of a final decree,
a preliminary decree cannot be enforced. He therefore,
contends that the Execution Petition per se is not
maintainable. He further contends that the suit properties
are agricultural lands and therefore, the process
prescribed under Section 54 of CPC had to be followed
before the decree-holders claimed that the suit properties
fell to their share. He therefore, contends that the
impugned order passed by the Executing Court is without
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considering these fundamental aspects and therefore,
deserves to be interfered with.
4. Per contra, learned counsel for the decree-holder
contends that there is no illegality in the Executing Court
entertaining the Execution Petition. He contends, while
considering the Execution Petition, the Court could drawn
up a final decree and therefore, the application is in
accordance with law. He contends that one of the reliefs
sought for in the execution petition is to deliver possession
of the 3/4th share of the decree-holders in the suit
properties and therefore, the impugned order did not
prejudice the judgment debtors in any manner.
5. I have considered the submissions of the learned
counsel appearing for the decree-holder as well as the
Judgment Debtors and perused the records.
6. In view of the Judgment passed by the co-ordinate
Bench in R.S.A.No.1077/2002 connected with
R.S.A.No.1078/2022, the decree-holders were entitled to
3/4th share in the suit schedule properties while 1/4th
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share of the Defendant No.1 had to be apportioned
amongst Defendant Nos.3 to 8. The suit schedule
properties are agricultural land and therefore, it was
necessary that a revenue officer was appointed to suggest
division of the properties as per the decree passed in
R.S.A.No.1077/2002 connected with R.S.A.No.1078/2022.
Unless such suggestion was accepted by the Court, there
was no effective implementable and executable decree in
favour of the decree-holders. No doubt, the Executing
Court being the Court which passed the preliminary
decree, could also draw final decree in the execution
proceedings. Having said that, there is no embargo
against the decree-holders to file a final decree
proceedings as no limitation is prescribed for filing a
petition for final decree. Therefore, the execution
proceedings initiated by the decree-holders deserves to be
terminated and the L.Rs of the decree-holders are
permitted to file proceedings for final decree in accordance
with law and thereafter, shall execute final decree that
may be passed in the proceedings.
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7. In view of the above, this writ petition is disposed
of terminating the execution petition filed by the decree
holders. Consequently, the impugned order passed by the
Executing Court in E.P.No.77/2011 is also set aside.
However, liberty is reserved to the decree holders to
initiate steps to pass a final decree.
Sd/-
(R. NATARAJ)
JUDGE
BNV
