Karnataka High Court
Vithal S/O Bapu Misale vs Parashuram S/O Maruti Samagar Ors on 16 July, 2013
Author: Mohan M Shantanagoudar
Bench: Mohan .M. Shantanagoudar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
TH
DATED THIS THE 16 DAY OF JULY, 2013
BEFORE
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
WRIT PETITION NO.84885/2011 (GM-CPC)
BETWEEN :
Vithal S/o Bapu Misale,
Age: Major, Occ: Agriculture,
R/o: Ratnapur,
Tq & Dist: Bijapur-586 101.
......Petitioner
( By Sri Ashok.S.Kinagi, Advocate)
AND :
1. Parashuram S/o Maruti Samagar,
Age: Major, Occ: Agriculture,
R/o: Ratnapur,
Tq & Dist: Bijapur-586 101.
2. Bhirappa S/o Siddappa Pujari,
Age: Major, Occ: Agriculture,
R/o: Dhandargi,
Tq & Dist: Bijapur-586 101.
3. Amagonda S/o Siddappa Pujari,
Age: Major, Occ: Agriculture,
R/o: Dhandargi,
Tq & Dist: Bijapur-586 101.
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4. Kareppa S/o Siddappa Pujari,
Age: Major, Occ: Agriculture,
R/o: Dhandargi,
Tq & Dist: Bijapur-586 101.
5. Rudrayya alias Shivalingayya
S/o Savalagayya Virakthamath,
Age: Major, Occ: Agriculture,
R/o: Chubachi, Tq: Jamakhandi,
Dist: Bagalkot-586 401.
6. Jalandra S/o Govind Kardekar,
Age: Major, Occ: Agriculture,
R/o: Ratnapur,
Tq & Dist: Bijapur-586 101.
7. Smt. Akkubai W/o Tukaram Lamani (Pawar),
Age: 43 Years, Occ: Household work,
R/o: Takkalki L.T. At: Post: Takkalki,
Tq & Dist: Bijapur-586 101.
.....Respondents
( By Sri Sanjeev Kumar C.Patil, Advocate for R2 to R4
Sri M.M.Kulkarni, Advocate for R1
Sri S.M.Gourimath, Advocate for R7)
This writ petition is filed under Articles 226 and 227
of the Constitution of India, praying to issue a writ in the
nature of certiorari and to quash the order i.e.,
Annexure-G vide Dated 17.11.2011 passed on I.A. No. I
filed by the respondents No.2 to 4 in R.A. No. 50/2008 on
the file of the Principal Dist. Judge at Bijapur and
consequently reject I.A. No. I filed by the respondents
No.2 to 4 with cost.
This writ petition coming on for Orders this day the
Court made the following:-
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ORDER
Petitioner herein filed O.S.No.83/1997 for specific performance of contract. The agricultural land bearing RS.No.259, measuring 17 guntas and 22 guntas situated at Siddapur(K) Village, Bijapur District was the subject matter of the suit. According to the petitioner-plaintiff, respondent No.1-defendant No.1 in the suit agreed to sell the suit property. The said suit came to be decreed on 25.10.2006. The said decree was not questioned by the defendants immediately. Thus, the decreeholder, i.e., the petitioner herein filed Execution Petition No.44/2007 for executing the decree passed in O.S.No.83/1997. The notices were issued to the judgment debtors on 21.2.2007. Respondents 2 to 4 herein appeared before the Executing Court on 21.3.2007 through advocate. They did not even file statement of objections to the execution petition nor did they file appeal questioning -4- the judgment and decree passed in O.S.No.83/1997 immediately thereafter; ultimately, the registered sale deed came to be executed in favour of the petitioner- decreeholder at the intervention of the Court by appointing Court Commissioner; only after executing the sale deed in favour of the decreeholder by defendant No.1-respondent No.1 herein at the intervention of the Court through Court Commissioner, RA.No.50/2008 came to be filed by respondents 1 to 4 herein questioning the judgment and decree passed in O.S.No.83/1997. Along with the suit, an application for condonation of delay of 1 year 3 months and 10 days also came to be filed. The said application is allowed by the impugned order.
2. Sri Ashok Kinagi, learned counsel for the petitioner submits that absolutely no valid reasons are forthcoming to condone the delay of more than one year three months; respondent No.1 herein appeared -5- in the suit and he contested the matter; decree was passed against respondents 1 to 4 herein; though respondents 2 to 4 appeared before the Executing Court on 21.3.2007, they did not choose either to file objections or to file appeal questioning the judgment and decree passed in O.S.No.83/2007; appeal came to be filed after one year from the date of respondents 2 to 4 appearing in the Executing Court and hence, the Court below is not justified in condoning the delay.
3. Sri Sanjeev Kumar Patil, learned counsel for the respondents 1 to 4 submits that the Court below has exercised its jurisdiction judiciously under the facts and circumstances of the case; no notice was served on respondents 2 to 4 in the suit and therefore they could not appear before the Trial Court to oppose the suit; since the valuable rights of respondents are involved, the Court below is justified in condoning the delay.
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4. Undisputedly, suit came to be filed for specific performance. Case of the plaintiff is that respondent No.1 herein agreed to sell the property in favour of the plaintiff-petitioner herein; since the property was not sold as agreed by respondent No.1, suit came to be filed for specific performance; during the subsistence of the suit, respondent No.1 herein sold the property in favour of respondents 2 to 4 herein; O.S.No.83/1997 filed by the petitioner herein came to be decreed on 25.10.2006; Execution Petition No.44/2008 is filed on 14.2.12007. In the said execution petition, respondent No.1 remained absent. However, respondents 2 to 4 herein, i.e., subsequent purchasers of the property appeared through advocate on 21.3.2007; Thereafter registered sale deed was executed in favour of the petitioner-decreeholder at the intervention of the Court through Court Commissioner. These facts are not in dispute. -7-
5. The Court below has condoned the delay of more than one year three months in filing the appeal on the ground that respondents 2 to 4 did not appear before the Trial Court. It is not in dispute that respondents 2 to 4 did not appear before the Trial Court, but the fact remains that notices were served on them; respondent No.1 herein who had sold the property in favour of respondents 2 to 4 during the pendency of the suit had appeared and contested the matter. Respondents 2 to 4 did not file any application for setting aside the order placing them exparte. The Trial Court having found that notices were duly served on respondents 2 to 4, proceeded with the suit and ultimately suit came to be decreed on 25.10.2006. Even other wise, respondents 2 to 4 appeared before the Executing Court as far back as on 21.3.2007 itself. There is no reason for them to keep quiet at least thereafter. They should have either filed -8- objections to execution petition or they could have filed miscellaneous petition under Order IX Rule 13 of CPC for setting aside the exparte decree immediately after appearance in execution petition. They could have also filed appeal questioning the judgment passed in O.S.No.83/2006. Since respondents 2 to 4 had appeared through advocate on 21.3.2007, they could have filed appeal within 30 days or within a reasonable period therefrom questioning the judgment and decree passed by the Trial Court. They have kept quiet for a long period of one year even thereafter. The appeal came to be filed by respondents 2 to 4 only on 6.3.2008.
This Court would have definitely taken a lenient view in the matter relating to condonation of delay keeping in mind that the substantial justice needs to be done. In the matter on hand, the very conduct of respondents 2 to 4 herein in keeping quiet for about -9- more than one year even after service of notice and after their appearance before the Executing Court, this Court prefers to interfere with the impugned order.
In view of the same, the impugned order is liable to be quashed. Accordingly, the impugned order dated 17.11.2011 at Annexure-G, stands quashed.
Petition is allowed accordingly.
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JUDGE *ck/-