Karnataka High Court
Smt. Basamma W/O Late Basappa M.D vs Talakal Mallappa S/O Talakal Siddappa on 13 February, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
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WP No. 107400 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 107400 OF 2024 (GM-CPC)
BETWEEN:
1. SMT. BASAMMA
W/O LATE BASAPPA M.D
AGE 69 YEARS OCC BUSINESS
R/O NANDIHALLI VILLAGE
TQ: HUVINHADAGALI
DIST: VIJAYNAGAR-583219
2. SMT MALLAMMA
W/O MATESHAPPA MORGERI
AG 53 YEARS OCC BUSINESS
R/O NANDIHALLI VILLAGE
TQ: HUVINHADAGALI
DIST: VIJAYNAGAR-583219
3. SMT MANJUL
ASHPAK W/O KARIBASAPPA IGALLA
KASHIMSA
MALAGALADINNI AG 45 YEARS OCC BUSINESS
R/O BANDIGERI VILLAGE
Location: HIGH
COURT OF TQ: HUVINHADAGALI
KARNATAKA
DHARWAD DIST: VIJAYNAGAR-583219
BENCH
...PETITIONERS
(BY SRI. SHARAD V MAGADUM,ADVOCATE)
AND:
1. TALAKAL MALLAPPA
S/O TALAKAL SIDDAPPA
AGED ABOUT 65 YEARS
OCC AGRIL.
R/O: NANDIHALLI VILLAGE
TQ: HUVINAHADAGALI
DIST VIJAYNAGAR (OLD BALLARI)-583219
-2-
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WP No. 107400 of 2024
2. SRI V B MALLIKESHI
S/O V B BASAVARAJAPPA
AGED ABOUT 56 YEARS OCC AGRIL
R/O NANDIHALLI VILLAGE
TQ: HUVINHADAGALI
DIST: VIJAYNAGAR-583219
...RESPONDENTS
(BY SRI. SANTOSH D. NARGUND., ADVOCATE FOR R1;
R2-SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI AND QUASH THE IMPUGNED ORDER
DATED. 28/10/2024 PASSED ON IA NO. 2 IN EP NO. 23/2019
PENDING ON THE FILE OF CIVIL JUDGE AND JMFC HADAGALI VIDE
ANNEXURE-D AND ETC.
THIS WRIT PETITION, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. The petitioners are before this Court seeking for the
following reliefs:
a. Issue a writ in the nature of Certiorari and quash
the impugned order dated 28.10.2024 passed on
I.A.No.2 in EP No.23/2019 pending on the file of
Civil Judge and JMFC Hadagali, vide Annexure-D.
b. Issue any other writ or directions as deem fit by
this Hon'ble Court in the interest of justice and
equity.
2. Respondent No.1 had filed a suit against respondent
No.2 for specific performance of an agreement of
sale in OS No.8 of 2013, where the suit was partly
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decreed directing the refund of the earnest money.
Respondent No.1 challenged the said judgment in
RA No.60 of 2018, which came to be allowed and a
decree of specific performance was ordered in favor
of respondent No.1.
3. The respondent No.2 preferred an appeal in RSA
No.100089 of 2019, which came to be dismissed on
13.9.2021. Respondent No.2 having filed a Special
Leave Petition in Slp.No.12593 of 2021, the said
petition also was dismissed on 13.9.2021. It is
thereafter that the petitioner filed a suit in
OS No.88 of 2021 seeking for partition in respect of
various properties including the property subject
matter of the specific performance decree.
4. Execution petition having been filed in EP No.23 of
2019, the petitioners filed an application under Rule
97 of Order 21 of the Code of Civil Procedure
claiming that they have an interest in the property
and the execution proceedings cannot be proceeded
without hearing their objections. The said application
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has been dismissed vide the impugned order dated
28.10.2024. It is challenging the same, that the
petitioners are before this Court seeking for the
aforesaid reliefs.
5. Sri.Sharad V.Magadum., learned counsel for the
petitioner would submit that a suit has been filed by
the petitioners for partition. The petitioners being
members of the family being the sisters of
respondent No.2-Judgment Debtor, the property in
which they have an interest has been made a part of
the specific performance suit and if a sale deed is
executed in respect to the said property the interest
of the petitioner would be adversely affected and as
such the trial Court ought to have considered their
rights while considering an application under Rule 97
of Order 21 and as such it is submitted that the order
passed by the trial Court is required to be set aside
and the application under Rule 97 of Order 21 be
allowed.
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6. Sri.Santosh D.Nargund., learned counsel for
Respondent No.1-Decree holder would however
submit that the suit for partition has been filed after
the disposal of the Special Leave Petition and two
years after the execution petition was filed and the
application is completely bereft of merits, Malafide
and abuse of the process Court, in as much as the
application was filed only to delay the execution of a
decree which has been confirmed upto the Hon'ble
Supreme Court of India.
7. Heard Sri.Sharad V.Magadum., learned counsel for
the petitioner and Sri.Santosh D.Nargund., learned
counsel for Respondent No.1. Perused papers.
8. The sequence of events have been laid out
hereinabove, which would categorically indicate and
support the submission of Respondent No.1-Decree
holder that the defense set up by Respondent No.2-
Judgment debtor has been rejected. Thereafter a suit
for partition has been filed and subsequently an
application under Rule 97 of Order 21 has been filed.
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9. Though in a proceeding under Rule 97 of Order 21 in
terms of Rule 100 thereof, it is required for all the
issues to be determined in the said application under
Rule 97 of Order 21. The fact remains that the
petitioner has filed a suit for partition and it is for the
petitioner to establish their right in the said suit
before seeking for any right in the property subject
matter of the specific performance decree.
10. In that view of the matter, I do not find any infirmity
in the orders passed by a trial Court, it would
however have to be observed that in the event of the
petitioner succeeding in the said suit for partition,
the Respondent No.1-Decree holder cannot claim any
equities. The petition stands dismissed.
11. In view of dismissal of the main petition, pending
IA's does not survive for consideration. Hence, IA
stands dismissed.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
