Karnataka High Court
Sri Shivasamy vs Sri C H Honnegowda on 13 June, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2025:KHC:20301
WP No. 16924 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 16924 OF 2025 (GM-CPC)
BETWEEN:
1. SRI. SHIVASAMY
S/O LATE HONNEGOWDA
AGED 57 YEARS
2. SRI. KUMARASWAMY
S/O LATE HONNEGOWDA,
AGED 65 YEARS,
3. SRI. NANJUNDAPPA
S/O LATE HONNEGOWDA
AGED 65 YEARS
4. SRI. PRAKASH,
Digitally signed S/O LATE HONNEGOWDA
by NAGAVENI AGED 59 YEARS
Location: High
Court of
Karnataka
P1 - P4 ARE RESIDING AT
CHAGACHAGERE VILLAGE - 573 164,
GANDASI HOBLI, ARASIKERE TALUK.
5. SMT. KAMALAMMA,
W/O RANGEGOWDA,
RESIDING AT
MADAGUDDANAHALLI VILLAGE - 562 157,
CHANNARAPATNA TALUK.
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WP No. 16924 of 2025
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6. SMT. HONNAMMA,
W/O SHIVEGOWDA,
R/O CHAGACHAGERE VILLAGE - 573 164,
GANDASI HOBLI, ARASIKERE TALUK.
...PETITIONERS
(BY SRI. D. PRABHAKAR, ADVOCATE)
AND:
SRI. C.H. HONNEGOWDA,
MAJOR, S/O LATE HONNEGOWDA,
R/O CHAGACHAGERE VILLAGE - 573 164,
GANDASI HOBLI,
ARASIKERE TALUK.
...CAVETOR/RESPONDENT
(BY SRI. A.V. GANGADHARAPPA, ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 3.05.2025 PASSED ON IA NO. IV
FILED U/S 41 RULE 5 R/WS 151 CPC IN RA NO.40/2024 VIDE
ANNX-A PENDING ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC ARASIKERE AND ALLOW THE SAID APPLICATION
AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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WP No. 16924 of 2025
HC-KAR
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
Heard Sri. D. Prabhakar, learned counsel appearing for
the petitioners, Sri. A.V. Gangadharappa, learned counsel
appearing for the caveator/respondent and have perused the
material on record.
2. The petitioners are before this Court calling in
question an order dated 03.05.2025 passed on an application
filed under Order XLI Rule 5 read with Section 151 of the
C.P.C., seeking an interim order of stay of the final decree.
3. A suit is instituted in the year 1981 in
O.S.No.152/1981. A decree is passed on 26.10.1988. The final
decree proceedings were instituted in the year 1990 in FDP
No.8/1990. For conclusion of the final decree, it has taken
33 years, after which, an appeal is filed against the final decree
in R.A.No.8/2023. In the said proceeding, since there was a
delay of 39 days in preferring the appeal, the petitioners had
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preferred an application seeking condonation of delay. Notice is
issued on the application seeking condonation of delay and the
matter goes on before the Court for about 16 months, no order
is passed on the condonation of delay. Without an order being
passed on the condonation of delay, the application seeking
stay of the order passed in final decree is not granted and could
not have been granted in terms of order passed under
Order XLI Rule 5 of the C.P.C. In the interregnum, the decree
holder initiates execution proceedings seeking to enforce the
decree or the final decree. In the said proceeding, the delivery
warrant is issued by the concerned court. At that point in time,
the petitioners file an application under Order XLI Rule 5 of the
C.P.C., seeking stay of the final decree. The concerned Court on
the following reasons, rejects the said application:
"7. POINT NO.1: The execution proceedings is
arise out of decree passed in O.S.No.152/1981 and FDP
No.8/1990. The decree and final decree are not
challenged by the Judgment debtors and no appeal is
pending. The Decree holder paid for execution of decree
by paying Decree holder on his allotted properties. After
handing over the possession by Judgment debtors, the
Judgment debtors have appeared before the Court and
filed objections stating the Decree holder have not
mentioned which properties have allotted to him and he is
in his possession. Further the decree schedule properties
mentioned as Item no. "N" comprised in Sy.No.34
mesuring 1 acre 15 guntas of Basavapura Village is
subject matter of probate proceedings pending before
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Hon'ble District and Sessions Judge, Hassan regarding the
bill dated 15.03.2014 executed by Judgment debtor No.4.
Decree schedule properties are as follows:
I. Landed properties situated at Chagachagere
village:
a) land bearing sy no 4/2 measuring 0.1/2
guntas, b) land bearing sy no 79/2 measuring 0.6 1/2
guntas, c) land bearing sy no 224 measuring 17 guntas,d)
land bearing sy no 164/1b measuring 2 guntas, e) land
bearing sy no 164/1C measuring 0.2 1/4 guntas, f) Land
bearing sy no 102/3b measuring 3/4 guntas, g) land
bearing sy no 102/3c measuring 3/4 guntas, h) land
bearing sy no 103/6b measuring 0.1/2 guntas, l) Land
bearing sy no 105/1b measuring 1/2 guntas, j) land
bearing sy no 162/12 measuring 1/2 guntas,k) land
bearing sy no 187/13 measuring 3 1/2 guntas,L) land
bearing sy no 185/1 measuring 2 3/4 guntas.
II. Landed properties situated at
Basavanapura village as follows:
M)land bearing sy no 10 measuring 22 3/4 guntas
and n) land bearing sy no 34/1 measuring 13 3/4 guntas
These properties are herein after referred as
Decree schedule properties for further reference.
9. In his objections the Judgment debtor has
mentioned pending of appeal filed by him before Hon'ble
Senior Civil Judge and JMFC, Arasiekre. Further he has
contended the properties cannot be effectively partitioned
between the parties. The said objection is yet to be
considered in this case. The notice to JDRs are served and
at this stage this application is filed.
10. On going through the records, the decree
holder has mentioned the extent as per the sketch in
commissioner report. Now the decree holder relied on the
boundaries mentioned in the sketch annexed to the Final
decree and in FDP no 8/1990. On going through the Final
decree and decree schedule properties, the decree holder
has mentioned the details of 4 properties which are not
included in the final decree proceedings in this case.
Those properties are land bearing sy no 224 measuring
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17 guntas, land bearing sy no 164/1C measuring 0.2 1/4
guntas, land bearing sy no 102/3C measuring 3/4 guntas,
Land bearing sy no 105/1b measuring 1/2 guntas. But
aspect of the division of the decreetal properties are
considered and court commissioner has noted the definite
share of the decree holder. The decree holder has sought
for possession of the properties allotted to him. Therefore
the contention of Judgment debtor No.4 cannot be
considered. The aspect of partition is already dealt in the
Final decree proceedings and in said proceedings no
contention raised related to section 2 of Partition Act,
1893. Further at the time of drawing final decree this
court has held all properties are eligible for division as per
the decree. Therefore there is no ground made to
consider the said aspect in this proceedings. At this stage
this application is not maintainable. It is well settled law
that executing court cannot go beyond decree. Already
division is effected in final decree and already shares are
decided in the final decree. Hence this application is liable
to be rejected. Accordingly this Court answer Point
no.1 in the Negative.
POINT No.2:- In view of the finding on Point no.1,
I proceed to pass the following:
ORDER
I.A.No.I filed under section 2 of Partition Act 1893
is rejected.
To hear on objections on execution petition by
02.09.2024."
The entire reason rendered by the concerned Court is that
application seeking condonation of delay is not yet decided,
therefore, stay of the order cannot be granted. In the same
breath, the Executing Court is now proceeding to execute the
order. Therefore, the petitioners are before this Court.
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4. The order sheet is appended to the petition.
The order sheet is indicative of the fact that the application
seeking condonation of delay has travelled for 16 months
before the concerned Court for manifold reasons. The reasons
are not required to be noticed here.
5. In the light of the matter being pending at the
stage of condonation of delay and the stay application being
rejected only on the ground that delay is not condoned, the
concerned Court has contradicted itself. Therefore, to protect
the rights of the parties or the rights to leave on frustration, I
deem it appropriate to direct the concerned Court to pass an
order on the application on the condonation of delay so filed
along with R.A.No.40/2024 within an outer limit of one (1)
week from the date of receipt of a copy of the order. After the
order being passed on condonation of delay, the Court shall
then consider the application under order XLI Rule 5 of the
C.P.C., filed by the petitioners in R.A.No.40/2024 within one (1)
week thereafter, after hearing the parties to the lis.
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6. Since the suit is of the year 1981 and the final
decree proceedings of the year 1990 and after 33 years,
the Court has taken to pass a final decree, it is just and proper
that the proceedings should expeditiously culminate. In that
light, I deem it appropriate to direct the concerned Court to
dispose the appeal, as expeditiously as possible, at any rate
within three (3) months from the date of receipt of a copy of
the order, if not earlier.
7. For the aforesaid reasons, the following:
ORDER
(i) The petition is allowed.
(ii) The order dated 03.05.2025 rejecting an application
under Order XLI Rule 5 of the C.P.C., passed by the
Principal Civil Judge and JMFC, Arasikere, stands
quashed.
(iii) The matter stands remitted back to the hands of
the concerned Court to decide the application within
one (1) week from the date of receipt of a copy of
the order.
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(iv) After deciding the application on condonation of
delay within one (1) week as observed
hereinabove, in the next one (1) week, the
concerned Court shall pass necessary orders on
application under Order XLI Rule 5 of the of C.P.C.,
as filed seeking stay of the final decree
proceedings.
Sd/-
(M.NAGAPRASANNA)
JUDGE
SJK
CT: BHK
