Karnataka High Court
Sri R Murthy vs Sri R Muthuraj(Deceased) on 25 July, 2023
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2023:KHC:25897
WP No. 35900 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
WRIT PETITION NO. 35900 OF 2016 (GM-CPC)
BETWEEN:
SRI. R. MURTHY,
S/O LATE R. RAJAGOPAL,
AGED ABOUT 66 YEARS,
R/AT NO.E-54, 2ND MAIN,
RAMACHANDRAPURAM,
BANGALORE-560 021.
...PETITIONER
[BY SRI. S.VINOD, ADVOCATE (PH)]
AND:
1. SRI R. MUTHURAJ (DECEASED)
S/O R. LATE RAJAGOPAL,
AGED ABOUT 69 YEARS,
R/AT NO.E-135 & 136, 3RD MAIN,
RAMACHANDRAPURAM,
BANGALORE-560 021.
SINCE DECEASED
REP. BY THE LEGAL HEIRS
Digitally signed by
GEETHAKUMARI SRI. SURESH,
PARLATTAYA S S/O R. MUTHURAJ,
Location: High Court AGED ABOUT 48 YEARS,
of Karnataka R/AT NO.E-135 & 136,
3RD MAIN,
RAMACHANDRAPURAM,
BANGALORE-560 021.
2. SMT. GAYATHRI,
D/O R. MUTHURAJ,
AGED ABOUT 40 YEARS,
R/AT NO. E-135 & 136,
3RD MAIN
RAMACHANDRAPURAM,
BANGALORE-560 021.
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NC: 2023:KHC:25897
WP No. 35900 of 2016
3. SRI. MANI,
S/O R. MUTHURAJ,
AGED ABOUT 38 YEARS,
R/AT NO. E-135 & 136,
3RD MAIN
RAMACHANDRAPURAM,
BANGALORE-560 021.
4. SRI. MAYYAPPA,
S/O R. MUTHURAJ,
AGED ABOUT 35 YEARS,
R/AT NO. E-135 & 136,
3RD MAIN,
RAMACHANDRAPURAM,
BANGALORE-560 021.
5. SMT. MAYYAMMA,
D/O R. MUTHURAJ,
AGED ABOUT 35 YEARS,
R/AT NO. E-135 & 136,
3RD MAIN,
RAMACHANDRAPURAM,
BANGALORE-560 021.
...RESPONDENTS
[BY SRI. KIRAN KUMAR, ADVOCATE FOR R1 TO R5 (AB)]
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 31.5.2016 PASSED IN EX.PETITION NO.3005/2013
ON THE FILE OF THE COURT OF IX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU VIDE ANNEXURE-A AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
B-GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Challenging order dated 31.05.2016 passed by IX Addl. City Civil and Sessions Judge, Bengaluru (CCH - 5) in Ex. Petition no.3005/2013 on application filed under Order XXI Rule -3- NC: 2023:KHC:25897 WP No. 35900 of 2016 29 r/w Section 151 of CPC at Annexure-A, this writ petition is filed.
2. Sri. S. Vinod, learned counsel for petitioner submitted that petitioner herein was Decree Holder in O.S.no.2529/2006 decreed on 20.02.2010 recording compromise and Execution Petition no.3005/2013 was filed for executing said decree.
3. Upon appearance, respondent/Judgment Debtors filed application under Order XXI Rule 29 of CPC read with Section 151 of CPC for staying execution proceedings until disposal of O.S.no.958/2013 pending before same Court.
4. In affidavit filed in support of application, it was stated that Execution Petition was filed against Judgment Debtor for delivery of possession on basis of decree in O.S.no.2529/2006. It was further stated that before very same Court Judgment Debtor filed O.S.no.958/2013, challenging alleged release deed, wherein Decree Holder herein was arrayed as defendant no.2. It was stated that since suit was pending between parties before same Court, ingredients of Order XXI Rule 29 of CPC were satisfied and therefore, further proceedings in Ex.Petition required to be stayed. It was submitted that in statement of objections, it was contended that in order to invoke Order XXI -4- NC: 2023:KHC:25897 WP No. 35900 of 2016 Rule 29 of CPC apart from requirement of pendency of Suit and Execution Petition before very same Court, requirement of said proceedings between same parties was also mandatory as held by this Court. It was submitted that despite substantial contentions urged in objections, trial Court allowed application and stayed further proceedings in Execution Petition. Aggrieved thereby, this petition is filed.
5. It was submitted that while passing said order, trial Court had merely taken note of pendency of O.S.no.958/2013 filed by Judgment debtors before same Court and without verifying satisfaction of other ingredients for invocation of Order XXI rule 29 of CPC. Hence, impugned order, called for interference.
6. In support of his case, learned counsel relying on decisions of this Court in Ashok Shamanna Vs. Nayeem Khan1; Sundra Bai & Ors. Vs. Sonubai2 and Sikandar Mohammad Ali Dalal & Anr. Vs. Babu Hanumanth Mindolkar & Ors.3.
7. Heard learned counsel and perused writ petition record.
1 2003 (7) KLJ 141 2 2004(5) KLJ 619 3 2023 (1) KLR 556 -5- NC: 2023:KHC:25897 WP No. 35900 of 2016
8. From above submission, there is no dispute about fact that petitioner/Decree holder had filed Execution Petition no.3005/2013 for execution of decree dated 20.02.2010 passed in O.S.no.2529/2016. During pendency of proceedings in Ex.no.3005/2013, O.S.no.958/2013 was filed by Judgment debtor for partition etc. It is also not in dispute that Decree holder is arrayed as defendant no.2 in said suit. While respondents-applicants contend that as Decree holder was one of parties to subsequently filed suit which was pending before very same Court Order XXI Rule 29 of CPC was satisfied, therefore Execution proceedings required to be stayed; Respondent/Decree holder contends that unless both proceedings were before same Court and between same parties, there would be no justification for staying further proceedings invoking Order XXI Rule 29 of CPC.
9. On perusal of plaint in O.S.no.958/2013 produced at Annexure-N, it is seen that suit is filed by legal representatives of Sri.R Muthuraj, who are judgment debtors. However, (defendants therein are i) Sri. Muthuraj (defendant no.1), Sri.R Murthy (defendant no.2), apart from Smt.Sunanda Bai, Smt.Muthulakshmi, Sri.Madiyalagan, Sri.Udaya Kumar, Smt.R -6- NC: 2023:KHC:25897 WP No. 35900 of 2016 Surya Kumari, Smt.R Punidaveni and Sri. Manjunatha J Sunil as defendants no.3 to 9. Defendants no.3 to 9 are not parties to present execution petition.
10. Order XXI Rule 29 reads as follows:
" Where a suit is pending in any Court against the holder of a decree of such Court instituted by the person against whom the said decree was passed, the Court may, on such terms as to security or otherwise, as it thinks fit, stay the execution of the decree until the pending suit has been decided."
11. This Court in Ashok Shamanna's case (supra) and Sundra Bai's case (supra) has held that for invocation of Order XXI Rule 29 of CPC, both requirements should be met namely pendency of both proceedings before same Court and between same parties. That apart, it is also held that power under Order XXI Rule 29 of CPC is discretionary and on mere satisfaction of above condition, only in exceptional circumstances, where interest of justice required. However, impugned order is passed merely recording finding about pendency of two proceedings before same Court, which would not meet requirement of law.
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NC: 2023:KHC:25897 WP No. 35900 of 2016
12. Hence writ petition is allowed, impugned order dated 31.05.2016 passed by IX Addl. City Civil and Sessions Judge, Bengaluru (CCH-5) in Ex.Petition no.3005/2013 on application filed under Order XXI Rule 29 r/w Section 151 of CPC at Annexure-A, is set aside. Said application stands rejected.
It is seen that present Execution petition is of year 2013. Hon'ble Supreme Court in case of Rahul S Shah Vs. Jinendra Kumar Gandhi & Ors.4 has held that Executing Proceedings are required to be expedited. Therefore, Executing Court is directed to expedite disposal thereof within an outer limit of four months from date of receipt of certified copy of this order.
Sd/-
JUDGE PSG 4 AIR 2021 SC 2161