Sudhir Gajanan Vinekar, vs Mohammed Yusuf Momin, on 3 October, 2012

[Cites 3, Cited by 0]

Karnataka High Court

Sudhir Gajanan Vinekar, vs Mohammed Yusuf Momin, on 3 October, 2012

Bench: Huluvadi G.Ramesh

                             1




           IN THE HIGH COURT OF KARNATAKA
              CIRCUIT BENCH AT DHARWAD

       DATED THIS THE 3RD DAY OF OCTOBER 2012

                          BEFORE

      THE HON'BLE MR.JUSTICE HULUVADI G.RAMESH

                 CRP NO.1113/2010(RES)

BETWEEN

1.    SUDHIR GAJANAN VINEKAR,
      65, YEARS,

2.    SANTOSH GAJANAN VINEKAR,
      60 YEARS,

3.    SHANTANU GAJANAN VINEKAR,
      44 YEAS,

4.    RAHUL UDAY VINEKAR,
      36 YEARS,

ALL ARE R/O UPPONI COMPOUND, KAIKINI ROAD,
KARWAR-581 301.

                                         ... PETITIONERS
(BY SRI.HARSH DESAI, ADV.)

AND

MOHAMMED YUSUF MOMIN,
66 YEARS,
SHOP NO.2., VINEKAR BUILDING,
MAIN ROAD, KARWAR-581 301.

                                         ... RESPONDENT
(BY SRI.S.B.NAIK, ADV.)
                                    2




     THIS CRP IS FILED UNDER SECTION 115 OF CPC.,
AGAINST THE ORDER DATED 24.07.2010 PASSED IN
EXECUTION PETITION NO.81/2009 ON THE FILE OF THE CIVIL
JUDGE (JR.DN.), KARWAR, PETITION IS DISMISSED AS IT IS NOT
MAINTAINABLE, WHICH IS BASED ON A DECREE PASSED IN
S.C.NO.3/2003.

     THIS CRP COMING ON FOR FINAL HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:

                             ORDER

Heard the learned counsel appearing for both the parties.

2. This petition is arising out of the order passed by the Civil Judge (Jr.Dn.), Karwar in E.P.No.81/2009 dismissing the execution petition holding that, the decree passed by a Court having no jurisdiction is void ab initio as per Section 9 of CPC.

3. The learned counsel for the petitioners has relied upon the judgment of this Court in the case of Abdul Wajid Vs. A.S.Onkarappa reported in 2010-LAWS(KAR)-12-49. This Court in paragraph Nos.98 and 104 of its judgment held that, having regard to the object and purpose of enacting the KSCC 3 Act and creating a special class of Civil Courts known as 'Courts of Small Causes' which are nevertheless Civil Courts but with a limited jurisdiction and also relieved from the rigors of procedure as contemplated under the Code of Civil Procedure, particularly in providing for trial of suits in a summary manner, a suit which is triable before a Small Causes Court and could result in a decree either for eviction in an ejectment suit or for any other purpose including recovery of money, if should have been tried by a regular Civil Court and which Court otherwise also has the jurisdiction to try all disputes of civil nature, notwithstanding the provisions of sections 8 and 9 of the KSCC Act, we are of the definite view that a suit which could have been otherwise required to be tried before a Small Causes Court but had been tried before a regular Civil Court and had culminated in a judgment and decree, such a decree following a full course trial by the regular Civil Court cannot be and should not be characterized as a decree without jurisdiction for the purpose 4 of examining the correctness or otherwise of the decree but based solely on the question of jurisdiction.

4. In that view of the matter, the order passed by the executing Court namely, Civil Judge (Jr.Dn.), Karwar in E.P.No.81/2009 dismissing the petition is set aside. The matter is referred to the Executing Court for execution of the decree as prayed for.

Sd/-

JUDGE MBS/-

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