Karnataka High Court
B Pushpalingam Since Deceased By His Lrs vs Gandhiwada Co-Operative Housing ... on 19 February, 2025
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RP No. 100191 of 2014
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REVIEW PETITION NO. 100191 OF 2014 (-)
BETWEEN:
B. PUSHPALINGAM
SINCE DECEASED BY HIS LRS
1. CHANDRAMOHAN
S/O. B.PUSPALINGAM
AGED ABOUT 54 YERAS,
R/O. KESHWAPUR,
HUBBALLI- 378/13,
10TH CROSS, KESHWAPUR.
2. SATISH KUMAR NO.2
S/O B.PUSHPALINGAM
AGED ABOUT 44 YEARS,
ENGINEER,
R/O. BANGALORE.378/13,
10TH CROSSS,
KESHWAPUR, HUBBALLI.
Digitally
signed by
VN 3. PRABHU NO.3
BADIGER S/O. B.PUSHPALINGAM,
Location: AGED ABOUT 43 YERAS,
High
Court of ENGINEER, R/O. DUBAI.378/13,
Karnataka, 10TH CROSS, KESHWAPUR,
Dharwad
Bench HUBBALLI.
...PETITIONERS
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
AND:
1. GANDHIWADA CO-OPERATIVE
HOUSING SOCIETY LTD.,
HUBBALLI
BY ITS (HONORARY) SECRETARY,
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RP No. 100191 of 2014
2. K. R. RADHAKRISHAN RAJU
NO.2,
(NOT PARTY TO LIS AS HE WAS
GIVEN UP IN COURT BELOW
BY PLAINTIFF).
...RESPONDENTS
(BY SRI. SHRIHARSH A. NEELOPANT, ADVOCATE)
------
THIS RP IS FILED UNDER SECTION 114 R/W ORDER 47 RULE 1
OF CODE OF CIVIL PROCEDURE, PRAYING TO ALLOW THE INSTANT
REVIEW PETITIONER AND THE JUDGMENT DATED 12.06.2014
PASSED IN R.S.A.535/2007 BE SET ASIDE BY ALLOWING APPEAL.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL ORDER
This Review Petition is filed by the appellants 1 to 3 in
RSA No.535/2007 seeking review of the order of this Court
dated 12.06.2014 in the aforesaid appeal.
2. I have heard learned counsel appearing for the
parties.
3. Sri. Mallikarjunaswami B Hiremath, learned counsel
appearing for the petitioners/the appellants in RSA
No.535/2007, argued that this Court has ignored the fact that
the petitioner/B.Pushpalingam had filed suit against respondent
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No.2 herein and in the said suit, the plaintiffs/petitioners herein
filed an application under Order XXXVIII Rule 5 of the Code of
Civil Procedure, 1908 (for short "CPC") seeking attachment of
property belonging to the respondent No.2 and the said suit is
for recovery of money. It is submitted that the said aspect of
the matter was not considered by this Court while disposing of
the Regular Second Appeal and it s difficult for the petitioners
herein/plaintiffs to recover the dues from respondent No.2. It is
also argued by Sri. Mallikarjunaswami B Hiremath, the learned
counsel appearing for the petitioners herein, that the subject
matter of the attachment of property, sought to be made in the
said application, was allotted in favour respondent No.2 by the
respondent No.1 and therefore, the said aspect has not been
considered by this Court while disposing of the second appeal.
He also refers to the orders passed by the Hon'ble Supreme
Court dated 21.11.2014 in SLP No.30723-724/2014.
Accordingly, submitted that there is an error apparent on the
face of the record, which requires to be interfered with in this
petition.
4. Per contra, Sri. Shriharsh Neelopant, learned
counsel appearing for the respondents, invited the attention of
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this Court to the paragraph 21 and 22 of the order passed by
this Court dated 12.06.2014 and argued that the argument
advanced by the learned counsel appearing for the petitioners
herein has been considered at length by this Court while
disposing of the second appeal and therefore, submitted that
there is no error apparent on the face of the record and
accordingly, sought for dismissal of the review petition.
5. In the light of the submissions made by the learned
counsel appearing for the parties, I have carefully examined
the order dated 12.06.2014 in RSA No.535/2007. Perusal of the
same would indicate that the interlocutory application filed
under Order XXXVIII Rule 5 of CPC filed by the petitioners
herein in O.S.No.29/1974 wherein the suit has been filed by the
petitioners herein against the respondent No.2 seeking
recovery of money. The subject matter in the application was a
site appears to have been allotted by the respondent No.1-
Society. It is also submitted by Sri. Shriharsh Neelopant,
learned counsel appearing for the respondents that the
respondent No.1 herein has cancelled this allotment made in
favour of respondent No.2. In that view of the matter, the
language employed under Order XXXVIII Rule 5 of CPC where it
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is open for the plaintiff to seek attachment of the property
before the judgment in the event the defendant intend to
obstruct or delay the execution of any decree that may be
passed against him.
6. Perusal of the finding recorded by this Court would
indicate that the respondent No.1 herein has not executed
absolute sale deed in favour of respondent No.2 herein. In that
view of the matter, being an allottee of the said property, the
respondent No.2 has no legal right over the property in
question. In that view of the matter, taking into consideration
the arguments advanced by the learned counsel appearing for
the parties as well as the finding recorded by this Court at
paragraph 21 and 22 of the impugned order, I do not find any
error apparent on the face of the record as required under
Section 114 of CPC. Accordingly, following the declaration of
law made by the Hon'ble Supreme Court in the case of Shri
Ram Sahu (Dead) through LRs v. Vinod Kumar Rawat
and others reported in (2021) 13 SCC 1, I do not find any
material to interfere with the order impugned in this revision
petition. Accordingly, the petition stands dismissed.
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7. In view of disposal of the petition pending
interlocutory applications, if any, do not survive for
consideration and are disposed of accordingly.
Sd/-
(E.S.INDIRESH)
JUDGE
YAN
