Sri. Mahesh vs Sri. Laxmikanthareddy
2025 Latest Caselaw 304 Kant

Citation : 2025 Latest Caselaw 304 Kant
Judgement Date : 3 June, 2025

Karnataka High Court

Sri. Mahesh vs Sri. Laxmikanthareddy on 3 June, 2025

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                                                  WP No. 201251 of 2024


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                          IN THE HIGH COURT OF KARNATAKA

                                KALABURAGI BENCH

                        DATED THIS THE 3RD DAY OF JUNE, 2025

                                         BEFORE
                         THE HON'BLE MR. JUSTICE M.I.ARUN


                     WRIT PETITION NO.201251 OF 2024 (GM-CPC)
              BETWEEN:

              SRI. MAHESH
              S/O SHANMUKHAPPA,
              AGED ABOUT 45 YEARS,
              OCC: AGRICULTURE,
              R/O SINGANAL VILLAGE,
              TQ. KARATAGI, DIST. RAICHUR-586101.

                                                           ...PETITIONER
              (BY SRI. RAVI B. PATIL, ADVOCATE)

              AND:

Digitally signed SRI. LAXMIKANTHAREDDY
by VARSHA N S/O SANJEEVREDDY,
RASALKAR         OCC: AGRICULTURE,
Location: HIGH R/O CHANALLI VILLAGE,
COURT OF
KARNATAKA        TQ. SINDHANUR,
                 DIST. RAICHUR-586101.

                                                          ...RESPONDENT
              (SERVED)

                   THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
              THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
              CERTIORARI ANY OTHER WRIT OR DIRECTION TO QUASH THE
              IMPUGNED ORDER 10.01.2024 PASSED ON I.A. FILED UNDER
              ORDER XXI RULE 32, 35 OF CODE OF CIVIL PROCEDURE IN
              E.P.NO.121/2022 PASSED BY THE COURT OF II ADDITIONAL
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                                          NC: 2025:KHC-K:2812
                                       WP No. 201251 of 2024


HC-KAR




CIVIL JUDGE AT SINDHANUR AS AT ANNEXURE-H, AND
CONSEQUENTIALLY TO ALLOW THE APPLICATION PREFERRED
BY THE PETITIONER FOR ISSUANCE OF DELIVERY WARRANT
BY PUTTING THE PETITIONER IN POSSESSION OF THE SUIT
PROPERTY.

     THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM:     HON'BLE MR. JUSTICE M.I.ARUN


                       ORAL ORDER

(PER: HON'BLE MR. JUSTICE M.I.ARUN)

Aggrieved by the order passed on an interlocutory

application filed by the petitioner herein under Order XXI

Rule 32, 35 read with Section 151 of CPC in Execution

Petition No.121/2022 dated 10.01.2024 by the II

Additional Civil Judge at Sindhanur, the decree holder

therein has preferred this petition.

2. The petitioner filed O.S.No.146/2014 which is a

suit for specific performance of contract against the

respondent herein. The Trial Court based on the pleadings

framed the following issues.

1. Whether the plaintiff proves that, the defendant has executed an sale agreement on 04-08-2010 through document No.4502/2010-11?

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2.Whether the plaintiff further proves that he is always ready of willing to perform his part of the contract?

3. Whether the plaintiff is entitled to the relief of specific performance as prayed?

4. Whether defendant proves that the suit is barred as non-joinder of necessary parties?

5. Whether the defendant proves it is an loan transaction and documents are executed for security purpose?

6. What order or decree?

3. Based on the evidence let in and the arguments

made, the Trial Court answered the aforementioned issues

as follows:

Issue No. 1. : In the Affirmative.

Issue No. 2. : In the Affirmative.

Issue No. 3. : In the Affirmative.

Issue No. 4. : In the Negative.

Issue No. 5. : In the Negative.

Issue No. 6. : As per final order.

4. As the respondent did not abide by the order

passed in O.S.No.146/2014, the petitioner preferred

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E.P.No.121/2022. In the said execution petition as per the

order of the executing Court, the sale deed in respect of

suit schedule property has been executed in favour of the

petitioner herein through the Court Commissioner.

However, delivery of physical possession of suit schedule

property was not made in favour of the petitioner. Hence,

he filed an application under Order XXI Rule 32, 35 read

with Section 151 of CPC with the following prayer.

"For the facts and reasons stated in the annexed affidavit it is prayed that the Hon'ble Court be please to put the decree holder in possession of the schedule property by issuing possession delivery warrant in the interest of justice."

5. However, the Execution Court on the ground

that in the judgment and decree passed in

O.S.No.146/2014, there has been a direction only for

execution of the sale deed and not delivery of physical

possession of property and that the Execution Court

cannot go beyond the decree passed by the Trial Court has

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dismissed the said application. Aggrieved by the same, the

present writ petition is filed.

6. In spite of service of notice, respondent has

remained absent.

7. Admittedly, the petitioner filed

O.S.No.146/2014 for specific performance of contract in

which the respondent took up a defence that he is not the

sole owner of the suit schedule property and it is the joint

family property and others also have a right over the same

and that the suit is bad for non-joinder of necessary

parties. The Trial Court has negatived the contention of

the respondent. It is true that a person cannot purchase a

better right than what the vendor has. However, in the

absence of any other person to impleading themselves as

objectors, the Trial Court ought to have directed the

delivery of physical possession of the property.

8. The sale is always followed by delivery of

possession of the property. When the Trial Court has

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ordered for specific performance of contract and sale deed

is executed in pursuance of the same, it has to be

automatically followed by delivery of physical possession

of the suit schedule property in favour of the decree

holder, unless of course someone else has right over the

property and he objects to the same as an obstructer by

filing necessary application and the Court finds that there

is substance in the application. The conclusion of the Trial

Court that as there is no specific direction regarding

possession of the property to be delivered in the judgment

and decree passed in O.S.No.146/2014, on the given facts

and circumstances of the case, leads to an absurdity and it

will deny the decree holder from enjoying the fruits of the

decree which has attained a finality. He will be

unnecessarily made to file another case for possession

which is not what is contemplated in law.

9. For the aforementioned reasons, I am of the

opinion that the Trial Court erred in dismissing the

application filed by the petitioner. Hence the following:

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ORDER

i. The impugned order dated 10.01.2024 passed on interlocutory application filed under Order 21 Rule 32 and 35 read with Section 151 of CPC by the II Additional Civil Judge, Sindhanur in E.P.No.121/2022 is hereby set aside.

ii. The application filed by the petitioner before the Execution Court is hereby allowed.

iii. The Trial Court is directed to pass appropriate orders to facilitate the petitioner/decree holder to be put in possession of suit schedule property.