Karnataka High Court
Sri. Santosh Anant Kulkarni vs Sri. Annagouda Jyotigouda Patil on 14 October, 2025
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NC: 2025:KHC-D:13824
RSA No. 100608 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 14TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 100608 OF 2024 (PAR/POS-)
BETWEEN:
SRI. SANTOSH ANANT KULKARNI
AGE: 41 YEARS, OCC. AGRICULTURE/TRADE,
R/O. NERALIKAR GALLI, CHIKODI,
TQ. CHIKODI, DIST. BELAGAVI-591201.
...APPELLANT
(BY SRI. RAMACHANDRA A. MALI, ADVOCATE)
AND:
SRI. ANNAGOUDA JYOTIGOUDA PATIL
SINCE DECEASED BY HIS LEGAL HEIRS,
1. SRI. BABUGOUDA ANNAGOUDA PATIL
AGE: 70 YEARS, OCC. AGRICULTURE,
Digitally 2. SRI. DUNDAGOUDA ANNAGOUDA PATIL
signed by
YASHAVANT
YASHAVANT
NARAYANKAR
AGE: 65 YEARS, OCC. AGRICULTURE,
NARAYANKAR Date:
2025.10.16
10:47:42
+0530
3. SMT. BAYAVVA W/O. MAHALING LATKAR,
AGE: 63 YEARS, OCC. AGRICULTURE,
4. SMT. SONAWWA W/O. BALAPPA KHOT,
AGE: 62 YEARS, OCC. AGRICULTURE,
5. SMT. HOSHABAI W/O. KRISHNA KHOT,
AGE: 61 YEARS, OCC. AGRICULTURE,
6. SMT. RATNAVVA W/O. GOVIND GOURAJ,
AGE: 59 YEARS, OCC. AGRICULTURE,
7. SMT. GANGAWWA W/O. APPASAHEB SHIRAGURE,
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NC: 2025:KHC-D:13824
RSA No. 100608 of 2024
HC-KAR
AGE: 58 YEARS, OCC. AGRICULTURE,
ALL R/O. MANGANUR, TQ. CHIKODI,
DIST. BELAGAVI-591201.
8. SMT. SHIVABAI W/O. KALAGOUDA PATIL,
AGE: 68 YEARS, OCC. AGRICULTURE,
R/O. MANGANUR, TQ. CHIKODI,
DIST. BELAGAVI-591201.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
CALL FOR THE RECORDS IN EXECUTION CASE NO. 13/2007 ON THE
FILE OF THE PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, CHIKODI AND SET ASIDE JUDGMENT AND DECREE
MADE IN R.A. NO. 10/2021 PASSED BY THE PRINCIPAL SENIOR CIVIL
JUDGE, CHIKODI THEREBY CONFIRMING THE JUDGMENT/ORDER
DATED 21/04/2021 MADE IN E.P.NO. 13/2007 PASSED BY THE
PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
CHIKODI AS THE SAME BEING ARBITRARY, ILLEGAL AND NOT
SUSTAINABLE IN LAW AND CONSEQUENTLY ALLOW THE IA NO. 12
AND 13 FILED IN E.P.NO. 13/2007 ON THE FILE OF LEARNED
PRINCIPAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
CHIKODI AS PRAYED IN THE INTEREST OF JUSTICE AND EQUITY AND
ETC.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 100608 of 2024
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
Heard learned counsel appearing for the appellant. The
grievance of the appellant herein is that he was an obstructor
before the Executing Court in E.P.No.13/2007 (before Prl. Civil
Judge and JMFC, Chikodi) and his application was rejected
without holding any enquiry.
2. It is further the grievance of the appellant that he
filed an appeal against the said Order of the Executing Court
in R.A.No.10/2021 and it also came to be dismissed without
following the procedure laid down under Order XXI Rule 101 of
the Code of Civil Procedure (for short, CPC).
3. The brief factual aspect which is necessary for the
purpose of this appeal is that a suit for specific performance
filed by the decree holder came to be decreed before the First
Appellate Court in R.A.No.40/1997, by overturning the
dismissal of the suit by the trial Court. The said decree for
specific performance was questioned before this Court in RSA
No.2599/2005. This Court dismissed the second appeal. Thus,
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HC-KAR
the decree for specific performance had attained the finality.
The decree holder filed Execution Petition for specific
performance of the agreement of sale in E.P.No.13/2007.
During the pendency of the execution petition, the present
appellant filed an application under Order XXI Rule 98 to 101
of CPC contending that he has an undivided interest in the suit
schedule property which was subject matter of the execution
petition. The Executing Court by the impugned order dated
17.02.2021, dismissed the application. Against the said order,
the appellant herein approached the First Appellate Court in
R.A.No.10/2021, which also came to be dismissed. Impugning
the said order dated 18.06.2024; the appellant/obstructor is
before this Court in second appeal.
4. The Executing Court by relying upon the judgment
of the Madras High Court in the case of C.Murugan V/s
Tilagavathy and Another1, dismissed the application without
affording an opportunity to the appellant to adduce evidence
in the matter. The First Appellate Court in the impugned
judgment relied on a judgment of this Court in RFA
2015 1 CTC 516
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HC-KAR
No.100321/2019 and came to the conclusion that the
appellant had not shown any prima facie material to show that
he had any interest in the property so that he could resist the
execution petition. It is the said order, which is being
impugned in this appeal.
5. The learned counsel appearing for the appellant
submits the appellant claimed an independent share in the
suit schedule property since he was also a member of the joint
family, which consisted of ancestors of the judgment debtor
(seller) in the execution petition. The learned counsel
appearing for the appellant tries to impress upon this Court as
to how he has a right through the genealogy which he
contends in the matter. Obviously, the parties to the present
appeal; or for that matter to the application which was before
the Executing Court; are only a branch of the joint family
which the appellant herein now contends; and the purchaser
of the property. The Executing Court can limit the matter only
to the extent of the so-called right of the appellant herein in
suit schedule property and it cannot adjudicate upon the
question, whether the plaintiff has a right in it or not. Under
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these circumstances, if the appellant herein has any
independent right in the suit schedule property, by virtue of
his claim in the joint family property, obviously that would not
be obstructed by any means. The rights of the judgment
debtor in the suit schedule property emanate from his claim in
the joint family property. Therefore, if in any case, the
appellant herein could establish that he has any rights in the
suit schedule property, the rights of the judgment debtor
would be restricted to that extent and he could have alienated
the property only to the extent of his share.
6. After lapse of so many years, the appellant has
approached the Court and it is not necessary for this Court to
venture into the reasons as to why the appellant herein did
not agitate his right at an earlier point of time. Therefore, this
Court finds that there is no necessity of entering into the
question of facts which are involved in the matter and since
the appellant has already filed a suit for partition which is
pending in O.S.No. 96/2019 before Civil Judge, Chikodi, for
which the judgment debtor and the decree holder are also the
parties, it is not necessary for this Court to enter into the
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merits of the case. This Court would only clarify that the sale
that could happen pursuant to the decree for specific
performance in the execution petition would be subject to the
final outcome of the partition suit. With these observations,
the appeal is disposed off.
SD/-
(C M JOSHI)
JUDGE
RKM
CT:PA
