Karnataka High Court
Narayan Baddappa Lad vs Smt.Gangubai on 25 September, 2025
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CRP No. 100033/2016
RESERVED ON : 11.09.2025
PRONOUNCED ON : 25.09.2025
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 25TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CIVIL REVISION PETITION NO.100033 OF 2016
BETWEEN:
NARAYAN BUDDAPPA LAD,
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O: SARAF GALLI, SHAHAPUR,
BELAGAVI-590001.
...PETITIONER
(BY SRI. SHREEVATSA S. HEGDE, ADVOCATE)
AND:
Digitally signed by
SMT. GANGUBAI W/O. BOMANNA LAD,
MALLIKARJUN
RUDRAYYA
KALMATH
SINCE DECEASED BY LRS
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH
Date: 2025.09.26
14:38:10 +0530
BASAVANT BOMANNA LAD
SINCE DECEASED BY LRS
1A) MR. MAHADEV BASAVANT LAD
AGE: 36 YEARS, OCC: AGRICULTURE
R/O: H.NO.1149, SARAF GALLI,
BELAGAVI-590001.
1B) SMT. MANISHA INDRAJEET CHAVAN
AGE: 31 YEARS, OCC: HOUSEWIFE
R/O: ASHOK NAGAR,
IN FRONT OF NIPPANI MEDICALS,
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CRP No. 100033/2016
NIPPANI, DIST: BELAGAVI-591237.
1C) SMT. SONALI DINESH SAINUCHE
AGE: 29 YEARS, OCC: HOUSEWIFE
R/O: SHRIGARE COLONY,
PATIL GALLI, KHASBAG,
BELAGAVI-590003.
1D) SMT. SUPRIYA AJIT MANDOLKAR
AGE: 30 YEARS, OCC: HOUSEWIFE
R/O: H.NO.67, MARATHA GALLI,
II CROSS, MAHADWAR ROAD,
BELAGAVI-590003.
...RESPONDENTS
(BY SRI. PRASAD PATIL, ADVOCATE FOR R1(A) TO R1(D))
THIS CRP IS FILED UNDER SEC.115 OF CPC, PRAYING TO
SET ASIDE THE IMPUGNED ORDER DATED: 11.01.2016
PASSED BY THE I ADDL. CIVIL JUDGE AND JMFC, BELAGAVI IN
E.P.NO.230/1991 AND FURTHER BE PLEASED TO ALLOW THE
EXECUTION PETITION AND ETC.
IN THIS CIVIL REVISION PETITION, ARGUMENTS
HAVING BEEN HEARD AND RESERVED ON 11.09.2025 AND
COMING ON FOR "PRONOUNCEMENT OF ORDERS", THIS DAY,
THE COURT MADE THE FOLLOWING:
CAV ORDER
(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA)
This revision petition is directed against the order dated
11th January, 2016 passed in EP No.230 of 1991 by the First
Additional Civil Judge & JMFC, Belagavi (for short "the trial
Court").
2. For the sake of convenience, the parties herein are
referred to as per their status and rank before the trial Court.
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3. The brief facts leading to the revision petition are that
the revision petitioner and respondent are related to each
other. Respondents are legal heirs of deceased-Bomanna Lad.
The said Bomanna Lad entered into an agreement of sale to sell
his share in the property bearing CTS No.1147 of Saraf Galli,
Shahapur, Belgaum with the third party-Gopal Topanna Lad.
The revision petitioner sought to prevent the same, claiming a
preferential right to purchase the share of his brother in the
said property. Revision petitioner, therefore, filed suit in OS
No.689 of 1987 seeking restraint upon his brother from selling
his share in the said property and also claimed relief of
execution of sale deed. The suit, in the first instance came to
be decreed, and was modified in Regular Appeal No.3 of 1990,
which came to be confirmed by this Court in Regular Second
Appeal No.797 of 1991 wherein it was observed that the
revision petitioner had the first right to purchase the suit
property based upon the said decree, Revision Petitioner
presented execution application in EP No.230 of 1991 before
the First Additional Civil Judge, Belgavi. The Judgment debtors,
however, were not happy with the price fixed for the said
property and therefore, preferred Writ Petition No.14819 of
2006 before this Court. This Court, while allowing the petition,
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made observations which, in fact, were taken as power to
travel beyond the decree by the Executing Court and ultimately
ended in dismissal of the execution petition. The petitioner
being agreed by the order dated 11th January 2016 passed by
the I Additional Civil Judge & JMFC in Execution Petition No.230
of 1991 as not maintainable, has preferred this revision
petition.
4. A perusal of execution petition makes it clear that the
Judgment Debtor-Bhomanna son of Yellappa Lad died during
the pendency of the execution petition. Respondent appeared
before the Court and filed affidavit of. Smt.Sevantha B Lad,
Smt. Supriya B Lad and Smt. Manisha Indrajit Chavan stating
that they are defendants in the revision petition and the
revision petition is preferred against the order passed by the
executing Court is not maintainable. They have stated that the
offer made by the petitioner is not satisfactory. Moreover, the
parties are not intending to sell the schedule property to the
petitioner nor his assignors and they are going to keep the
schedule property for themselves. As against this, revision
petitioner has filed his objection by way of affidavit stating that
the affidavit dated 19th August 2025 filed by the respondents is
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mischievous, inaccurate, and untrue and is in violation of the
terms of the decree and therefore the same is untenable. The
respondents are not forthright and are unwilling to reveal the
truth. The false affidavit cannot be a ground for deciding the
revision. The decree passed by the trial Court in OS No.689 of
1997 was confirmed by the first appellate Court in RA No.3 of
1990 by Judgment dated 15th April, 1991, which was further
confirmed by this Court in RSA No.797 of 1991 prohibiting the
defendant No.1 from concluding the Sale in favour of defendant
No.2 pursuant to agreement of sale dated 16th June, 1987, until
the plaintiff is given first option to purchase the property on
same terms under Exhibit D1 by notice personally served on
the plaintiff requiring him to exercise his option to purchase the
property at the price or to apply for determination of properties
within the time to be stipulated in the notice. Further, it is
stated that the Execution Petition No.230 of 1991 filed by the
revision petitioner at the instance of predecessor of
respondents, there was an enquiry on the market value of the
property and there was a fresh fixation of price by the
executing Court. Therefore, it does not lie in the mouth of the
respondents that the decree reserved a right in their favour to
decline execution of the sale deed. After such determination of
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the value, the predecessor of respondents was not happy about
the amount so determined and challenged it in petition before
this Court. The Court, however, directed the executing Court to
determine the executability of the decree also. However, the
executing Court, without determining the said question, felt
obliged to dismiss the execution petition because it interpreted
the order of this Court passed in its writ jurisdiction as
overriding the decree confirmed by this Court in its civil
jurisdiction. Under such misconception, the execution petition
came to be dismissed rather than on legal grounds. The
possession of the said suit property was set to have been
handed over to Gopal Topanna Lad at the time of execution of
agreement of sale, and after his death, his legal heirs are said
to be in possession of the said property. This fact is not at all
reflected in the affidavit. The affidavit filed by the respondents
only state about the intention of respondents not to sell the
property, but do not mention anything about obedience to the
decree that is passed by the trial Court and confirmed by the
first appellate Court. It is totally silent about the notice to be
issued before selling of the suit property. Moreover, the
affidavit is filed only to overcome the decree passed by the trial
Court in the revision petition. The cardinal principle of law that,
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what cannot be done directly cannot be done indirectly, is aptly
applicable to the affidavit record. On all these grounds, it was
so to reject the affidavit filed by the respondents.
5. The learned Counsel for the revision petitioner would
submit that the order impugned passed by the Executing Court
is contrary to law, facts and procedure. The Executing Court
failed to take into account the materials placed by the parties
such as the agreement of sale dated 16th June, 1987, which
evidence the intention of the Judgment debtor to sell his share
in the suit property. The executing Court, by travelling beyond
the decree, has rendered the decree, just a "paper decree".
The Executing Court ought to have held that the Judgment
debtor had no right in perpetuity to decline an offer. In view of
the purport of the decree, the Executing Court ought to have
held that once the decree holder proves that there was an offer
made by the Judgment debtor in the form of an agreement to
sell the same, would act as an offer to the decree holder. The
Executing Court ought to have held that there was no need to
look for a new offer from the Judgment Debtor to sell the suit
property to the decree holder. In view of the very nature of
"preferential right" or "right of pre-emption" inasmuch as the
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very action of the Judgment Debtor in offering to sell the suit
property to anyone other than the holder of preferential right,
would act as an offer to such holder of preferential right. The
executing Court ought to have held that when decree holder
had preferential right to purchase, there was no decree
authorising the Judgment debtor to withhold an offer in the
form of notice perpetually, as he had already demonstrated his
intention to sell a property and a preferential right had already
accrued in favour of the decree holder. The Executing Court has
not properly read and understood the terms of decree under
execution. The Executing Court ought not to have dismissed
the execution petition. On all these grounds it is sought to
allow the revision petition. To substantiate his arguments, he
has relied on the following decisions:
1. ASHUTOSH CHATURVEDI v. PRANO DEVI AND
OTHERS - AIR 2008 SC 2171;
2. BENIRANI RAY AND OTHERS v. ASHOK KUMAR
GHOSH AND OTHERS - AIR 2010 ORISSA 7;
3. VALLIYIL SREEDEVI AMMA v. SUBHADRA DEVI AND
OTHERS - AIR 1976 KERALA 19;
4. RAM SINGH AND OTHERS v. GURNAM SINGH - ILR
VOL.XIII 563
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6. As against this, the learned Counsel for the respondent
would submit that the legal representative of the Judgment,
they have filed their affidavit stating that they are not willing to
sell the property to anybody and in Writ Petition No.14819 of
2006, the Court has observed that when the first defendant
decides to sell the property, he must issue notice to the plaintiff
for the price which could be the market value or the price
agreed upon between him and the defendant No.2. Therefore,
the question of Court Commissioner assessing the market value
in pursuance of the order passed for appointment of
Commissioner, is premature. Further, this Court has observed
that it is proper for the executing Court to first decide whether
there is an executable decree. If there is any, what is the
decree that is to be executed? It is only after recording a
finding therein, it shall consider the request of both the parties.
In view of the observation made by this Court in Writ Petition
No.14819 of 2006 disposed of on 8th December, 2008, the case
was remitted back to the executing Court to look into the terms
of decree, which is confirmed by the appellate Court, after
hearing both the parties to decide as to what is the nature of
the decree? is it executable? if it is executable, what is the
decree which is executable? and then pass appropriate orders.
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Accordingly, the executing Court has decided the matter in
accordance with Law. Absolutely, there are no grounds to
interfere with the order passed by the executing Court, and
hence it is sought for dismissal of the revision petition.
7. Having given my anxious attention to the contentions,
advanced by both the parties, the point that would arise for my
consideration is, "Whether the revision petitioner has made out
a ground to interfere with the impugned order passed by the
Executing Court?"
8. I have examined the materials placed before this
Court. It is relevant refer to the Judgment dated 15th April,
1991 in RA No.3 of 1990. The same reads thus:
"The suit is decreed prohibiting the Defendant
No.1 from concluding the sale in favour of the Defendant
No.2 pursuant to the Agreement of sale dated 16.06.1987
until the Plaintiff is given the first option to purchase the
property on same terms under Ex.D.1, by notice
personally served on the Plaintiff requiring him to exercise
his option to purchase at that price, or "to apply for
determination of properties within a time to be stipulated
in the notice".
9. Based upon this decree, the revision petitioner
presented EP No.230 of 1991, before the I Additional Civil
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Judge (Jr.Dn.), Belgaum. In the said Execution Petition, Order
was passed on 07th October, 2006. Against the order of the
Executing Court, judgment debtors, Smt. Gangubai and Sri
Basavant Lad preferred Petition before this Court in Writ
Petition No.14819 of 2006. The said writ petition was allowed
vide order dated 8th December 2008, in which at paragraph 10
of the order, this Court has observed as under:
"10. Writ Petition is allowed. The impugned order
passed by the Executing Court is hereby set aside. The
entire matter is remitted back to the Executing Court to
look into the terms of the decree which is affirmed in first
appeal After hearing both the parties, to decide what is the
nature of the decree? Is it executable? If it is executable
what is that decree which is executable? and then pass
appropriate orders. The Executing Court is at liberty to
decide these questions on its merits and in accordance with
law without in any way being influenced by any of the
observations made in 7."
10. In view of the said order, the order dated 07th
October, 2006 passed by Executing Court was set aside and the
matter was remanded back to the Executing Court to look into
the terms of the decree which is affirmed in the first appeal.
This Court in Writ Petition No.14819 of 2006, passed the order
on executability of the decree. The Executing Court has
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rejected the Execution Petition as not maintainable. The
Executing Court, at paragraphs 7 to 11, has assigned reasons
as under:
"7. Point No.1: During the course of his
arguments, the learned counsel for the DHR has argued
that the decree passed in R.A.No.3/1990 dated
15.04.1991 is very much an executable decree. Per
contra, the learned counsel for the JDr has contended
that the above decree is not an executable one. He has
further contended that since, the JDr has not offered to
sell his property, the question of executing the decree
passed in R.A.No.3/1990 does not arise.
8. I have carefully gone through the judgment
and decree passed in R.A.No.3/1990 dated 15.04.1991.
The same reads as follows:
"The suit is decreed prohibiting the
Defendant No.1 from concluding the sale in
favour of the Defendant No.2 pursuant to the
Agreement of sale dated 16.06.1987 until the
Plaintiff is given the first option to purchase
the property on same terms under Ex.D.1, by
notice personally served on the Plaintiff
requiring him to exercise his option to
purchase at that price, or to apply for
determination of properties within a time to
be stipulated in the notice."
9. On-careful perusal of the above decree, it is
clear that the Defendant No.1 i.e., the original JDr is
prohibited from executing the "safe deed in favour of the
Defendant No.2 i.e., Gopal Tupanna Lad The Plaintiffi.e.,
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the present Dhr has been given the first option to
purchase the suit property on the same terms as Ex.D.1.
If the first Defendant inte intends to give such option to
the Plaintiff, he shall serve a notice personally on
the plaintiff requiring him to execute his option or to
apply for the determination of proper price within a time
to be stipulated in the notice,
10. It is observed that as per the order passed in
RA.No.3/1990 the Defendant No.1 shall issue notice only
when he decides to sell the suit property. In the present
case, the JDr has not shown any interest or intention to
sell the suit property. Hence, executing the decree for
execution of sale deed against the JDr does not survive
for consideration:
11. Further, it is not the case of the Decree
Holder that the JDr is selling the property in favour of the
Defendant No.2 or any other third person. It is not in
dispute that the JDr has not issued any notice to the
Decree Holder-calling upon him to exercise his option to
purchase the suit property on the terms as under Ex.D.1
or to apply for determination of proper price. Since,
there is no proof to show that the JDr is trying to sell the
suit property in favour of the Defendant No.2 in
pursuance of the Agreement of sale dated 16.06.1987,
the question of execution of prohibition order to restrain
the JDr from selling the suit property does not arise. In
view of this, I hold that the Judgment and decree passed
in R.A.No.3/1990 is not an executable one, unless the
JDr acts in violation of the same or he opts to serve a
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notice on the Decree Holder calling upon him to purchase
the suit property. Hence, I answer Point No.1 in the
Negative."
11. In addition to this, respondents Smt. Shevanta B. Lad,
Smt. Supriya B. Lad and Smt. Manisha Indrajit Chavan, who
are respondents in this case, have filed their affidavits before
this Court stating that they are not intended to sell the
schedule property to the petitioner nor his assignors. The offer
made by the petitioner is not satisfactory as well as they are
not ready to sell the suit property to neither the petitioner, nor
his assignor or to anybody and that they are going to keep the
schedule property for themselves. When the respondents are
not intended to sell the schedule property, this Court cannot
compel them to execute sale deed in favour of the revision
petitioners.
12. The trial Court has assigned proper reasons and
passed the order impugned as per the direction of this Court
vide order dated 8th December, 2008 passed in Writ Petition
No.14819 of 2006. I do not find any error or illegality in the
order impugned passed by the trial court. Accordingly, the
point that arose for consideration is answered in the negative.
I have gone through the decisions relied upon by the learned
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Counsel for the revision petitioner. The facts and
circumstances in the decisions on which reliance is placed are
not consistent to the facts of the case on hand, and hence the
same will not come to the aid of revision petitioner. In the
result, I proceed to pass the following:
ORDER
Revision petition is liable to be dismissed,
accordingly dismissed.
Sd/-
(G BASAVARAJA)
JUDGE
lnn
CT-CMU
