Sikandar Mohammad Ali Dalal vs Babu Hanumanth Mindolkar on 17 July, 2014

[Cites 6, Cited by 1]

Karnataka High Court

Sikandar Mohammad Ali Dalal vs Babu Hanumanth Mindolkar on 17 July, 2014

Bench: K.Bhakthavatsala

                          :1:



            IN THE HIGH COURT OF KARNATAKA,
                     DHARWAD BENCH

          DATED THIS THE 17TH DAY OF JULY 2014

                        BEFORE

        THE HON'BLE DR.JUSTICE K.BHAKTHAVATSALA

         WRIT PETITION NO.81052/2013 (GM-CPC)

BETWEEN:

SIKANDAR MOHAMMAD ALI DALAL
A/A 52 YEARS, SERVICE
R/O MANGALWAD, TAL. HALIYAL
REPRESENTED BY HIS P.A.HOLDER
MOHAMMAD UMMAR MOHAMMAD ALI DALAL
A/A 58 YERS, AGRICULTURIST,
R/O MANGALWAD, TAL. HALIYAL,
DIST. UTTAR KANNADA.
                                       ...PETITIONER
(BY SRI. A.P. HEGDE JANMANE, ADVOCATE)


AND :

BABU HANUMANTH MINDOLKAR
A/A 82 YEARS AGRICULTURIST,
R/O NEAR HESCOM, HALIYAL
DIST. UTTAR KANNADA.
                                       .. RESPONDENT
(BY SRI. SACHIN S.MAGADUM, ADV. FOR C/R)


      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER PASSED ON I.A.NO.II DATED
04/07/2013 BY CIVIL JUDGE HALIYAL IN EX.PET.NO.18/2012
PRODUCED AT ANNEXURE F AND ETC.
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     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN B GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                             ORDER

Petitioner, who is decree holder in Execution Case No.18/2012 on the file of Civil Judge(Junior Division) and JMFC at Haliyal is before this Court praying for quashing the order dated 04/07/2013 passed on I.A.No.II in the above said execution case at Annexure "F".

2. Learned counsel for the petitioner submits that the petitioner filed a suit for possession against the respondent/defendant in O.S.No.79/2003. The said suit was decreed. The respondent challenged the same in R.A.No.8/2006 on the file of Senior Civil Judge at Yellapur. The appellate Court allowed the appeal by judgment and decree dated 13/12/2007 and the same was challenged in RSA No.520/2008 on the file of this Court and the said appeal was allowed and the judgment and decree of the trial Court were restored. The respondent feeling aggrieved by the order made in the RSA, preferred SLP in :3: No.28413/2012 unsuccessfully before the Apex Court. Thereafter, the petitioner filed Execution Case for possession and the Executing Court issued delivery warrant but the respondent filed an application under Section 47 read with Section 151 of CPC praying to recall the delivery warrant and decide the execution, discharge and satisfaction of the decree. He submits that though the application was objected by filing objection, the executing Court erred in allowing I.A.No.II filed by the judgment debtor filed under Section 47 of the CPC and thereby kept the delivery warrant in abeyance until further orders. He submits that since the respondent/judgment debtor has suffered the judgment and decree for possession, there is no good ground for him to file the application under Section 47 of the CPC and the executing Court without application of mind has allowed the same.

3. Learned counsel for the respondent submits that there is no illegality or infirmity in the impugned order.

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4. In view of the decision rendered in AIR 2005 ANDHRA PRADESH 171 in the case of POTHURI THULASIDAS v. POTRU NAGESWARA RAO, it is not open to the judgment debtor to plead new facts in the execution proceedings. The Executing Court erred in allowing the application and passing the impugned order.

In the result, the petition is allowed and the impugned order dated 04/07/2013 on I.A.No.II made in Execution Case No.18/2012 is set aside and the Executing Court is directed to dispose of the execution case in accordance with law.

(Sd/-) JUDGE Kmv

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