Karnataka High Court
P.M. Sangameshwara Swamy vs P.M. Naganathaswamy on 22 January, 2018
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF JANUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
WRIT PETITION NO. 100305/2017 (GM-CPC)
BETWEEN:
P.M. SANGAMESHWARA SWAMY
S/O P.M. VEERASHWARA SWAMY,
AGED ABOUT: 41 YEARS,
AGRICULTURIST,
R/AT OF BYLUR VILLAGE,
BELLARY TALUK AND DISTRICT
... PETITIONER
(BY SRI. M. D. KRISHNAPPA, ADVOCATE)
AND
1. P.M. NAGANATHASWAMY
S/O SANGAMESHWARA SWAMY,
AGED ABOUT: 85 YEARS,
R/AT OF BYLUR VILLAGE
BELLARY TALUK AND DISTRICT
2a. D.1 (a) SMT.SARVAMANGALA
D/O NAGAIAHSWAMY
AGED ABOUT 42 YEARS,
R/AT SHIVANANDA PRINTING PRESS,
NEAR EEEDIGARA HOSTEL,
BELLARY TALUK AND DIST.
3a. P.M. MANJUNATHSWAMY,
S/O LATE VISHWANATHASWAMY
AGED ABOUT 37 YEARS,
3b. P.M. NITHYANANDASWAMY
S/O LATE VISHWANATHASWAMY
AGED ABOUT 36 YEARS,
2
3c. BRAMHANANDASWAMY
S/O LATE VISHWANATHASWAMY
AGED ABOUT 34 YEARS,
ALL ARE RESIDING AT BYLUR VILLAGE,
BELLARY TALUK AND DIST.
4. P.M. VEERAIAHSWAMY
S/O LATE NAGAIAHSWAMY,
AGED ABOUT 70 YEARS,
RESIDING AT BYLUR VILLAGE,
BELLARY TALUK AND DIST.
5. STATE BANK OF INDIA,
ADB, BELLARY BY ITS MANAGER,
OPPOSITE TO KSRTC BUS STAND,
BELLARY,
6. PLD BANK BELLARY
BEHIND CITY BUS STAND,
BELLARY TOWN.
... RESPONDENTS
(BY SRI. MALLIKARJUNASWAMY B. HIREMATH, ADVOCATE FOR
RESPONDENTS)
THIS WP IS FILED UNDER ARTICLE 226 & 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
PASSED BY THE HON'BLE CIVIL JUDGE JUNIOR DIVISION AT
BALLARI IN EX.NO.228/2008 IN DISMISSING THE
APPLICATIONS FILED UNDER ORDER XXI RULE 58 AND 97
SECTION 151 CPC AND I.A.NO.9, AND FURTHER I.A.NO.8 FILED
UNDER ORDER XXI RULE 97 (2), 98 TO 99, 100 AND 101 READ
WITH SECTION 146 AND 151 OF CPC PRODUCED AT
ANNEXURE-'K' AND TO QUASH ANNEXURE-'L' i.e. DELIVERY
WARRANT IN RESPECT OF THE LAND OF THE PETITIONER IN
SURVEY NO.210(a) MEASURING 6 ACRES 12 GUNTAS SITUATED
AT BYLUR VILLAGE, BALLARI TALUK AND DISTRICT, AGAINST
THE PETITIONER.
THIS W.P. COMING ON FOR HEARING THIS DAY, THE
COURT, PASSED THE FOLLOWING:
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ORDER
The present writ petition has been filed by the petitioner-obstructer praying to issue a writ in the nature of certiorari to quash the order passed by the Hon'ble Civil Judge Junior Division At Ballari in Ex.No.228/2008 in dismissing the applications filed under Order XXI Rule 58 and 97 Section 151 CPC and I.A.No.9, and further I.A.No.8 filed under Order XXI Rule 97 (2), 98 to 99, 100 and 101 read with Section 146 and 151 of CPC produced at Annexure-'K' and to quash Annexure-'L' i.e. delivery warrant in respect of the land of the petitioner in Survey No.210(a) measuring 6 acres 12 guntas situated at Bylur village of Ballari District.
2. It is an admitted fact that the 1st respondent had filed the suit for declaration and possession in O.S.No.143/1997 and it was decreed on 12.10.2001.
Subsequently, the defeating parties have preferred appeals up to the Hon'ble Apex Court and the decree was confirmed.
Against the said judgment and decree, Ex.No.228/2008 was filed by the 1st respondent. The present petitioner filed 4 I.A.No.8 and 9 of CPC as an obstructer but the said applications were dismissed. Against the said order, the present writ petition has been filed. It is and admitted fact that the said orders were came to be passed under Order XXI of CPC. For the purpose of clarity, I quote Order XLIII of CPC, which reads as under:-
1. Appeal from orders.- An appeal shall lie from the following orders under the provisions of section 104, namely:--
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper court [except where the procedure specified in rule 10A of Order VII has been followed];
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(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an Order to set aside a decree passed ex parte; 3[* * *]
(f) an order under rule 21 of Order XI; 4[* * *]
(i) an order under rule 34 of order XXI on an objection to the draft of a document or of an endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale; 5[(ja) an order rejecting an application made under sub-rule (1) of rule 106 of order XXI, provided that 5 an order on the original application, that is to say, the application referred to in sub-rule (1) of rule 105 of that order is appealable;]
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
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(n) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; 5[(na) an order under rule 5 or rule 7 or Order XXXIII rejecting an application for permission to sue as an indigent person;
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(p) order in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;
(r) an order under rule 1, rule 2 1[rule 2A], rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1 or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re-
admit, or under rule 21 of Order XLI to re-hear, an appeal;
(u) an order under rule 23 or rule 23A or Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court; 2[***] (w) an order under rule 4 of Order XLVII granting an application for review.
61[1A. Right to challenge non-appealable orders in appeal against decrees. - (1) Where any order is made under this Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded.]
2. Procedure.- The rules of Order XLI shall apply, so far as may be, to appeals from orders.
3. As per Order 43 of CPC, that it amounts to a decree and an appeal lies against the said order before the appropriate court and not the writ. Under the said facts and circumstances, with a liberty to file appropriate appeal before the appropriate Court, the present writ petition is disposed off.
Sd/-
JUDGE yan