Karnataka High Court
Shri. Riyazkhan Gousesab Karikatti vs Prakash Balappa Hubballi on 22 June, 2017
Author: A.S.Bopanna
Bench: A.S.Bopanna
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE A.S.BOPANNA
WRIT PETITION No.104929/2017 (GM-CPC)
BETWEEN:
SHRI. RIYAZKHAN GOUSESAB KARIKATTI,
AGE: 43 YEARS, OCC: LATHE WORK,
R/O: M/S. GENERAL ENGINEERING WORKS,
NEAR HINDASAGERI HOUSE, PADADAYYAN HAKKAL,
BANKAPURCHOWK, HUBBALLI,
TALUK: HUBBALLI, DIST: DHARWAD. ... PETITIONER
(BY SRI SANTOSH NARGUND, ADV.)
AND:
1. SHRI PRAKASH BALAPPA HUBBALLI,
AGE: 54 YEARS, OCC: FLOUR MILL,
R/O: PADADAYYAN HAKKAL,
HUBBALLI, DIST: DHARWAD.
2. SMT.AMEDABEGAM
W/O HATELSAB KARIKATTI,
AGE: 36 YEARS, OCC: HOUSEHOLD,
R/O: BYAHATTI PLOT, BULDOJER NAGAR,
OLD-HUBBALLI, HUBBALLI.
3. SHRI MUSTAK AHAMMED
S/O HATELSAB KARIKATTI,
AGE: 21 YEARS, OCC: BUSINESS,
R/O: BYAHATTI PLOT, BULDOJER NAGAR,
OLD-HUBBALLI, HUBBALLI.
4. SHRI AMAREEN D/O HATELSAB KARIKATTI,
AGE: 20 YEARS, OCC: STUDENT,
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R/O: BYAHATTI PLOT, BULDOJER NAGAR,
OLD-HUBBALLI, HUBBALLI.
5. SMT.HEENA D/O HATELSAB KARIKATTI,
AGE: 18 YEARS, OCC: STUDENT,
R/O: BYAHATTI PLOT, BULDOJER NAGAR,
OLD-HUBBALLI, HUBBALLI. ... RESPONDENTS
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, HUBBALLI
IN EXECUTION CASE NO.139/2015 DATED:20.04.2017 ON IA.NO.I
FILED UNDER ORDER 21 RULE 58(1) TO (5) R/W. S. 47 AND 151
OF CPC., AS PER ANNEXURE-"G" AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court assailing the order dated 20.04.2017 passed in Execution Case No.139/2016.
2. The Executing Court after considering the application filed by the petitioner herein under Order XXI Rule 58 read with Sections 47 and 151 of Code of Civil Procedure has arrived at the conclusion that the right as claimed by the petitioner cannot be considered as an independent right so as to entertain an application as that of a third party as provided therein. In that view, the application has been rejected.
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3. The learned counsel for the petitioner while assailing the order would contend that in the appeal filed by the respondents herein, the petitioner has not been made a party despite the petitioner herein being in possession and was carrying on the business in the premises in question. It is his case that the petitioner in fact has put up the construction on the property and is carrying on the business and he is also entitled to the cost of the construction. In that light, it is the case of the learned counsel that when the respondents were aware that the petitioner was in possession, even if an ejectment order was to be obtained the same should have been secured only after impleading the petitioner herein and therefore the right as claimed ought to have been held by the Executing Court in favour of the petitioner.
4. In the light of the contention putforth by the learned counsel for the petitioner, I have perused the judgment dated 27.08.2015 in R.A.No.61/2011 and also the order 4 impugned dated 20.04.2017 passed in Execution Case No.139/2016. At the outset, a perusal of the causetitle to the appeal would indicate that the respondent therein who was the defendant to the suit was one Hatelsab Goususab Karikatti and on his death, his legal representatives namely the wife and children have been arrayed as parties. The petitioner herein claims to be the brother of the said Hatelsab Goususab Karikatti and in that light claims that he is in possession and is running the business as General Engineering Works. It is in that view, the petitioner claims that he is entitled to continue in possession of the premises regarding which the execution petition has been filed.
5. The very nature of the contention that is putforth in the application filed in the execution proceedings would indicate that the right as claimed is under the judgment debtor. If that be the position, the application of the present nature, in any event, would not be entertainable 5 before the Executing Court. That apart, if in fact the petitioner on having an independent right was carrying on the business in the said premises, when the legal representatives of the brother of the petitioner were arrayed as parties to the appeal, at that stage itself such contention ought to have been putforth by them in the said appeal and in that light, the petitioner also ought to have come on record in that appeal.
6. Therefore, when these aspects of the matter has not occurred during the pendency of the appeal, the claim as putforth by the petitioner, for the first time, by filing an application under Order XXI Rule 58 of CPC cannot be entertained as, such right as claimed by the petitioner is not an independent right. Therefore, the consideration as made by the Executing Court is justified. However, if the petitioner seeks to claim either refund of amount as having spent for construction or seek time to vacate from the premises, those are aspects which are to be putforth 6 before the Executing Court for consideration in that regard.
With such liberty, the petition stands disposed of.
Sd/-
JUDGE Jm/-