Karnataka High Court
Sri H S Vasantha Kumar vs The Vyalikaval House Building Co ... on 3 September, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2024:KHC:35907
CRP No. 735 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CIVIL REVISION PETITION NO. 735 OF 2023 (EX)
BETWEEN:
SRI H S VASANTHA KUMAR
S/O H.K. SUBRAMANYAM
AGED ABOUT 64 YEARS
RA/T NO. 6, II CROSS
PARADISE COLONY, PUTTENAHALLI
7TH PHASE, J.P NAGAR
BENGALURU 560 078.
REP BY HIS GPA HOLDER AND WIFE
SMT. SHASHIKALA V
AGED ABOUT 63 YEARS
R/AT NO.6, II CROSS
PARADISE COLONY
PUTTENAHALLI
7TH PHASE, J.P NAGAR
BENGALURU 560 078.
...PETITIONER
Digitally signed by B
K
(BY SRI. RAJASHEKAR S, ADVOCATE)
MAHENDRAKUMAR
Location: HIGH
COURT OF AND:
KARNATAKA
1. THE VYALIKAVAL HOUSE BUILDING
CO OPERATIVE SOCIETY LIMITED
16TH CROSS, MALLESHWARAM
BENGALURU 560 055
REP BY ITS SECRETARY
(REG. UNDER CO-OP SOCIETIES ACT 1969)
...RESPONDENT
(RESPONDENT SERVED AND UNREPRESENTED)
THIS CRP IS FILED UNDER SECTION 115 OF CPC,
AGAINST THE ORDER DATED 21.09.2023 PASSED IN
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NC: 2024:KHC:35907
CRP No. 735 of 2023
EXECUTION CASE NO.1482/2021 ON THE FILE OF THE XLII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
PETITION IS CLOSED.
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
ORAL ORDER
The petitioner challenges the order passed by the Trial
Court, which dismissed the execution case filed by the
petitioner as being barred by limitation. The decree holder had
initially filed a dispute under Section 70 of the Karnataka Co-
operative Societies Act, 1959, and the dispute was allowed,
directing the judgment debtors to refund an amount equivalent
to the site value with interest at the rate of 24% per annum, as
per the decree dated 18.04.2002.
2. The petitioner initially filed an execution case under
Order 21 Rule 11 of CPC before the Deputy Registrar of Co-
operative Societies, Bengaluru, in 2013, as evidenced by
Annexure-E. However, the papers related to the said execution
case became untraceable, and the petitioner was subsequently
instructed to file a fresh execution case, which was accordingly
filed in 2017.
3. On 13.07.2021, the Assistant Registrar of
Co-operative Societies granted the petitioner permission to
execute the decree before the Executing Court. Thereafter, the
judgment debtor filed a memo stating that the execution
NC: 2024:KHC:35907
petition, filed beyond the limitation period of 12 years, was not
maintainable, and therefore, the decree could not be executed.
The Executing Court, relying on Section 136 of the Limitation
Act, dismissed the execution petition as being barred by
limitation.
4. Despite being served with notice, the judgment
debtors neither appeared in person nor through counsel and
were placed ex parte.
5. It is undisputed that the decree holder had obtained
the award on 18.04.2002 through the Cooperative
Development Officer. The petitioner had filed an execution
case before the Deputy Registrar of Co-operative Societies in
2013, as evidenced by Annexure-E, and Annexure-G shows that
a demand notice/warrant was issued to the judgment debtors
on 17.06.2013. However, the execution did not proceed further
as the papers related to the case became untraceable. The
petitioner was then granted permission to file a fresh petition
under Order 21 Rule 11 of CPC.
6. Pursuant to the liberty granted, the petitioner filed
Execution Case No.23/2017 before the Assistant Registrar of
Co-operative Societies. The Assistant Registrar, by an order
dated 13.07.2021, granted the petitioner permission to execute
the decree before the Executing Court. The first execution
petition had been filed within the limitation period prescribed
under Section 136 of the Limitation Act. However, due to the
untraceable papers, the execution case could not proceed, and
NC: 2024:KHC:35907
the petitioner was subsequently granted leave to file a fresh
petition, which was filed in 2017. Therefore, it cannot be said
that the execution case to enforce the award passed by the
Cooperative Development Officer was filed beyond the
prescribed limitation period. Accordingly, the impugned order
passed by the Executing Court is not legally sustainable.
In view of the above, I pass the following:
ORDER
i) The Civil Revision Petition is allowed.
ii) The impugned order dated 21.09.2023 passed by the
XLII Additional City Civil and Sessions Judge, Bengaluru, in
Execution Case No.1482/2021 is hereby set aside, and the
execution Case No.1482/2021 is restored to its original file. The
Executing Court to proceed in accordance with law.
Sd/-
(HEMANT CHANDANGOUDAR)
JUDGE
HR
