Karnataka High Court
Sri M Venkatesh vs Sri M Marappa on 21 August, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 21ST DAY OF AUGUST 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No. 36076 OF 2013 (GM-CPC)
BETWEEN:
Sri. M. Venkatesh,
Son of V. Muniswamy @
Muniswamappa,
Aged about 58 years,
Residing at No.18/A,
1st Floor , Corpn. No.128,
7th Cross, Bhovipalya,
Mahalakshmipuram,
Bangalore - 560 086.
...PETITIONER
(By Shri. G. Rajakumar, Advocate)
AND:
Sri. M. Marappa,
Son of V. Muniswamy @
Muniswamappa,
Aged about 41 years,
Residing at No.18/A,
Ground Floor, Corpn. No.128,
7th Cross, Bhovipalya,
Mahalakshmipuram,
2
Bangalore - 560 086.
...RESPONDENT
(By Shri. M. Nagesh, Advocate [absent] )
*****
This Writ Petition filed under Articles 226 and 227 of the
Constitution of India praying to quash the impugned order
dated 1.6.2013 passed by the XXV Additional City Civil and
Sessions Judge, Bangalore, in Ex.Case No.292/2013 Annexure-
A, thereby staying the proceedings therein.
This Writ Petition coming on for Preliminary Hearing in
'B' Group this day, the court made the following:
ORDER
Heard the learned Counsel for the petitioner. The petitioner is said to be the plaintiff, who had filed the suit for ejectment against the defendant, who is none other than his brother and the said suit was contested on the footing that the suit was not maintainable and that there is another brother, who has filed a suit for partition in respect of the same property. Notwithstanding such a defence, the suit for ejectment was decreed. Thereafter, an appeal was preferred before this court in RFA 52/2013, in which a similar contention was raised. 3 Notwithstanding the same, the appeal was dismissed by a judgment dated 13.3.2013. Thereafter, execution having been taken out of the decree, the respondent is said to have filed an application under Order XXI Rule 29 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the 'CPC', for brevity), which no doubt provides that if another suit has been filed by the very party in respect of the same property, the suit would be stayed. The executing court has granted an order of stay on the basis of the said application. However, the circumstances are such that such a contention not having been raised for the first time and the contention to that effect having been raised in the suit for ejectment as well as in the appeal and the same having been negatived, such a contention would no longer be a bar for the execution of the decree. Therefore, on the face of it, the interim order of stay granted by the executing court is without reference to the circumstances where such a contention has been addressed both by the trial court as well as by this court in its appellate jurisdiction. Consequently, the 4 order appears to be ex facie illegal and cannot be sustained.
Accordingly, the petition is allowed. The interim order of stay granted by the executing court is set aside. The executing court shall proceed in accordance with law.
Sd/-
JUDGE nv