Karnataka High Court
Sri. M. M. Basavaraja Murthy vs Davanagere Harihara Urban on 16 February, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
W.P.NO.14310/2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.14310 OF 2017 (GM-CPC)
BETWEEN:
SRI. M.M. BASAVARAJA MURTHY
S/O. SHAMBULINGAIAH
AGED ABOUT 64 YEARS
R/AT DOOR NO.3714/138
MCC 'A' BLOCK, 14TH MAIN
S. NIJALINGAPPA BADAVANE
DAVANAGERE-577 001.
...PETITIONER
(BY SRI. ANIL KUMAR S. ADVOCATE)
AND:
DAVANAGERE - HARIHARA URBAN
DEVELOPMENT AUTHORITY
DEVARAJ URS LAYOUT, A BLOCK
DAVANAGERE - 577 006
BY ITS COMMISSIONER.
....RESPONDENT
(BY SRI. BRIJESH PATIL, ADVOCATE - ABSENT)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUION OF INDIA PRAYING TO QUASH THE
ORDER PASSED BY THE ADDL. CIVIL JUDGE AT DAVANAGERE
ON I.A. NO.III IN EXECUTION NO.109/2009 DATED
09.02.2017 VIDE ANNEXURE-D HOLDING THAT EXECUTION
W.P.NO.14310/2017
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BARRED BY LIMITATION AND PROCEEDINGS WITH
EXECUTION PETITIONER AND DISMISS THE EXECUTION
PETITION FILED BY THE RESPONDENT AUTHORITY HOLDING
AS BARRED BY LIMITATION AND NON-EXECUTABLE BY
ALLOWING THIS WRIT PETITION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs :
"i) Issue a writ of certiorari or any other suitable writ order or direction as the case may be, to quash the order passed by the Additional Civil Judge at Davanagere on I.A.No.III in Execution No.109/2009 dated 09.02.2017 under Annexure-D holding that execution barred by limitation and proceedings with execution petition and dismiss the execution petition filed by the respondent authority holding as barred by limitation and non-executable by allowing this writ petition.
ii) Grant such other relief/s as this Hon'ble Court deems fit to grant under the circumstances of the case including awarding the cost of this writ petition.
2. The grievance of the petitioner is that by way of Execution Petition No.109/2009, decree dated 09.09.1999 passed in O.S.No.12/1996 was sought to be enforced, which is objected to by the petitioner by filing an application under Section 151 of CPC contending that the execution proceedings were barred by law more W.P.NO.14310/2017 3 particularly in the light of Article 135 of the Limitation Act, 1963, which objection was rejected and the execution proceedings were proceeded with. Aggrieved by the said order, the petitioner is before this Court.
3. Sri.S.Anil Kumar, learned counsel for the petitioner would submit that the decree passed in the year 1999 being one for a mandatory injunction. In terms of Article 135 of the Limitation Act, the limitation period for filing of execution proceedings is three years from the date of decree or where a date fixed for performance is fixed. The date of decree in the present case being 09.09.1999 execution proceedings which were filed in the year 2009 are hopelessly barred by limitation and therefore, there is an error committed by the Trial Court, which require it to be interfered with by this Court by allowing this writ petition.
4. This Court on 03.02.2022 noticing that there has been no representation on the part of the respondent on several occasions and passed an order stating that the matter would be taken up for consideration on the next W.P.NO.14310/2017 4 date of hearing even in the absence of the respondent. Today also, none appears for the respondent, hence the matter was taken up for consideration in the absence of such representation.
5. Heard Sri.S.Anil Kumar, learned counsel for the petitioner and perused the papers.
6. The short question, which requires to be addressed by this Court is Whether the proceedings in Execution Petition No.109/2009 was within time or was it barred under Article 135 of the Limitation Act, 1963?
7. The undisputed facts are that in O.S.No.12/1996, an order of mandatory injunction had been passed on 09.09.1999, however, an amendment to the said decree was sought for by filing Misc.No.4/2000 on 14.01.2001. After consideration of the said Miscellaneous Petition, the same came to be disposed of on 27.02.2008 amending the decree passed. It is, thereafter, the execution proceedings in Execution Petition No.109/2009 was filed on 15.07.2009.
W.P.NO.14310/20175
8. Now, what is to be ascertained is the delay, if any, in filing of the execution proceedings. Admittedly, the decree was passed on 09.09.1999 , the Miscellaneous Petition was filed on 14.01.2000 i.e., within four months from the date of the decree and the amendment to the decree was made on 27.02.2008, the execution proceedings were filed after one year five months from the date of the amended decree on 15.07.2009. Even if the period in filing the amendment application and execution proceedings are taken into consideration, the total period is approximately 4 months plus 17 months i.e., 21 months, which is well within three year period as contemplated under Article 135 of the Limitation Act, 1963, since the period for which the miscellaneous petition was pending consideration can not be taken into consideration.
9. In view of the above, I am of the considered opinion that there is no delay in filing the execution proceedings in Execution Petition No.109/2009.
W.P.NO.14310/20176
10. In view of the above, I do not find any merits in the writ petition and accordingly, writ petition is disposed of.
Sd/-
JUDGE NBM