Smt. Gurushanthamma vs Mariswamy on 5 September, 2011

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Karnataka High Court

Smt. Gurushanthamma vs Mariswamy on 5 September, 2011

Bench: K.Sreedhar Rao

INTHE HIGH COURT OF KARNATAKA, BAN GALORE.
DATED THIS THE ST DAY OF SEPTEMBE AR, 2011 7
BEFORE

THE HON'BLE MR.JUSTICE K.SREEDHAR RAQ

WRIT PETITION NO: 17390/2010 (GM-CPC).
BETWEEN:-

1. SMT. GURUSHANTHAMMA,..
W/O. K. MAHENDRA' KUMAR,
AGE: 38 YEARS, |
HOUSE NO.50, |
SHIVARATRESWARANAGAR, HO
BANNIMANTAPA EXTE NSION,
MYSORE. CITY.

2, SMT. SHIVALTHA,
W/O. LAS TE BASA\ 'ARAG TU,
AGE: 30 YEA RS,
MADENAHALLL
HULLAHALLI HOBLL
NANGANAGUDE T ALUK,
MYSORE DISTRICT r.

2. RUM. SHOPHA, |

. AGE 27 YEARS,
D/O. MAPISWAMY,

4. "SHIVASWAMY,
| AGE 25 YEARS,
S/O). MARISWAMY,

KUM. NAGARATHNA,
_ AGE 23 YEARS,
D/O. MARISWAMY.

or

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C A KE RE] HOBL L
MADDUR TALUK,
MANDYA DISTRICT.

(BY SRI NARENDRA GOWDA, ADVOCATE }

AND:-

I, MARISWAMY,
3/0. LATE KEMPAIAH,
AGE 64 YEARS,
HARALAHALLI VILLAGE,
C.A KRERE HOBLI, ~~
MADDUR TALUK.
MANDYA DISTRICT. ~

2 o.5, SRILAKSHMI,
W/OLN. KRISHNA, a
R/O. NO. 429, HUEDEO: J ic,
LAKSHMIRAT HAN, AGAR,
[Sh pp IASE,.
HEBBAL LAP SOUT,
MYSC IRE C HEY.
RESPONDENTS
(BY SRI EK. M. SANATH KUM, ARA, ADVOCATE FOR R2}
(RIE ~ SERVE Dp

"THIS W. Pr. IS F ILE D UNDER ARTICLES 226 & 297 OF
THE. CoNsTiTU' TION OF INDIA WITH A PRAYER TO SET-
ASIDE THE. "IMPU GNED ORDER DATED 4.11.2009 IN
=: EXECUT! ON ) PETITION NO.137/2008 PASSED BY THE

°° CIVIL JUDGE (SR.DN.) MADDUR VIDE ANNEXURE-E BY

ISSUING A WRIT OF CERTIORAR] AS ILLEGAL AND ETC.

. This petition is coming for Prclininary hearing in 'B'
" group on this day, the Court made the e lollowing:-

a ae a

PETITIONERS |



. liregula ity causing miscarriage of justice. In the absence al

habd

ORDER

ihe petitioners are the children of the first respondent am The Respondent No.2 has filed a suit against, Respondent | No.i for specific performance. The ¢ rial court found that the relief of specific performance. should riot be granted. However, directed the refund of the advance "siount paid. D-1 was not able to refund ihe advi ane 7 amount. The Decree Holder filed execution petition for rece very of the money by sale of the property, Ww hich 'was the Subject matter of specific performance." The 'pieperty was 'sold by public auction in favour of Ramachandra. who | is 'not a party to the proceedings. The sale conlirmed and sale certificate is given. The purehaser | is put 4H possession of the property.

2. _ The children of Respondent No.1 have filed a ppheation belore ihe executing court under Order 21 Rule 90 of CPC to. set aside the sale. There is no material Tae pleadings t6 show that there is a fraud and material ; such material, if is impermissible to seek cancellation of sale. If the sale does not bind the share of the children of Respondent No.1, they should vindicate their rights > for.

separate proceedings for partition and possession of their™ shares. In that view, the writ petiton is.dismissed. -.

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