Karnataka High Court
Sri. Sanjeev S/O. Shankarappa ... vs Gyanappa Dalawayi on 27 February, 2025
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2025:KHC-D:3916
WP No. 101319 of 2025
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH R
DATED THIS THE 27TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.101319 OF 2025 (GM-CPC)
BETWEEN:
SRI. SANJEEV S/O. SHANKARAPPA DODDAMANI,
AGE. 42 YEARS, OCC. RETD. ARMY OFFICER,
R/O. AREKURHATTI VILLAGE, TQ. NAVALAGUND,
DIST. DHARWAD.
...PETITIONER
(BY SRI. IRANAGOUDA K KABBUR, ADVOCATE)
AND:
GYANAPPA DALAWAYI
AGE. 47 YEARS, OCC. ARMY OFFICER,
R/O. 3, TAMIL NADU BATTALION, NCC,
TURUVALLUVAN NAGAR,
Digitally signed by
PACHIYAP MENS HOSTEL,
ASHPAK
KASHIMSA KANCHIPURAM-631501.
MALAGALADINNI
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA
DHARWAD
BENCH
(NOTICE TO RESPONDENT IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI QUASHING THE IMPUGNED ORDER PASSED
BY THE SENIOR CIVIL JUDGE AND JMFC, NAVALAGUND IN EP
NO.17/2023 DATED 09.01.2025 ON IA NO.III FILED U/ORD.21 RULE
29 OF CPC-VIDE ANNEXURE-H AND TO ISSUE ANY OTHER WRIT,
ORDER OR DIRECTION AS THIS HON'BLE COURT DEEMS FIT TO
GRANT IN THE FACTS AND CIRCUMSTANCES OF THIS CASE IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS PETITION IS COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2025:KHC-D:3916
WP No. 101319 of 2025
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)
1. Notice to respondent is dispensed with in view of the
proposed order to be passed. The petitioner is before
this Court seeking for the following reliefs:
"A. Issue a writ in the nature of certiorari
quashing the impugned order passed by the
Senior Civil Judge and JMFC, Navalagund in EP
No.17/2023 dated 09.01.2025 on IA No.III filed
under order 21 Rule 29 of CPC vide
Annexure-H.
B. Issue any other writ, order or direction as
this Hon'ble Court deems fit to grant in the facts
and circumstances of this case in the interest of
justice and equity."
2. The petitioner was the plaintiff in O.S.No.570 of 2022
filed for recovery of certain amount. Notice having
been served on the respondent, who was the
defendant therein. Taking note of the absence of the
defendant that he was placed ex-parte, the matter
proceeded with and an ex-parte decree came to be
passed. Subsequent thereto, the petitioner filed
execution proceedings in EP No.17 of 2023 wherein, an
attachment order was sought for of the salary of the
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respondent to be issued in the name of the drawing
officer.
3. It is claiming that only then the judgment debtor came
to know about the decree, the judgment debtor filed
an application under Order XXI Rule 29 of the Code of
Civil Procedure (hereinafter referred to as 'CPC' for
brevity) for staying of the proceedings by contending
the judgment debtor had filed a proceeding in
Miscellaneous No.1 of 2024 for recall of the ex-parte
judgment and decree. The Executing Court allowed the
said application vide the impugned order dated
09.01.2025. It is challenging the same, the petitioner
is before this Court.
4. When the matter was taken up on an earlier occasion,
learned counsel appearing for the petitioner was called
upon to enquire and make his submission as to
whether service of notice in the suit had been effected
in terms of Rule 28 of Order V of the CPC. Today a
memo with the order-sheet has been filed as regards
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the service of notice in the execution proceedings
through the Commanding Officer.
5. Insofar as the service of notice in the suit, the order
sheet in the suit has been produced, a perusal of the
order sheet, would indicate that summons have been
issued on 17.12.2022 by RPAD. On 11.01.2023
awaiting the RPAD, the matter was adjourned to
23.01.2023. On 23.01.2023, the trial Court held that
the defendant is deemed to be duly served since the
endorsement received was that the registered post
was refused, he was called out since the defendant
was absent was placed ex-parte.
6. The defendant admittedly is serving in the army in the
Tamil Nadu battalion at Kanchipuram. Rule 28 of Order
V of CPC, reads as under;
"28. Service on soldiers, sailors or
airmen.--Where the defendant is a
soldier, [sailor] [or airman], the Court
shall send the summons for service to
his commanding officer together with a
copy to be retained by the defendants."
7. A reading of the aforesaid Rule 28 of Order V of CPC,
would indicate that service on soldiers, sailors or
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airman, would have to be effected by sending
summons for service to the Commanding Officer
together with a copy to be retained by the defendant
therein, i.e. the person to be served.
8. The notice was directed to be issued through RPAD. A
perusal of the order sheet, does not indicate that the
notice has been issued to the Commanding Officer in
terms of Rule 28 of Order V of CPC.
9. In the order sheet, there is an endorsement made that
the RPAD has been refused and it is in that
background that the Court held the defendant to be
deemed to have been served and placed exparte. It
not being disputed that the defendant is a soldier
working in the army, in terms of Rule 28 of Order V of
CPC, notice was required to be served through the
Commanding Officer, the question of refusal, who has
refused, would have to be considered in the Civil
Miscellaneous Petition now filed by the defendant-
respondent.
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10. In that view of the matter, it not being clear as to
whether the service has been affected properly or not,
the application filed under Order XXI Rule 29 of CPC
staying of the execution proceedings since Civil
Miscellaneous No.1 of 2024, had been filed to set-
aside the ex-parte order, cannot be found fault with.
11. The submission of the learned counsel for the
petitioner that in terms of Rule 29 of Order XXI of CPC,
there are to be two different proceedings inasmuch as
two different suits, cannot be accepted. In as much as
if the execution proceedings were to continue, when
the Civil Miscellaneous is pending and if the Civil
Miscellaneous was allowed, the decree would naturally
be set-aside, which would result in the defendant
being placed in a position, which cannot be reversed.
12. As such, I do not find any infirmity in the order passed
by trial Court, the petition stands dismissed at the
stage of admission itself.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
