Karnataka High Court
Sri.Tilak S/O Omu Gouda vs Smt.Rekha Vighneshwar Gouda on 7 March, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 07TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
CIVIL REVISION PETITION NO.100135/2019
BETWEEN
1. SRI. TILAK S/O. OMU GOUDA,
AGE 60 YEARS, OCC: COOLIE,
R/O. OKKANAHALLI, ARGA VILLAGE,
KARWAR TALUK,
DISTRICT UTTARA KANNADA - 581307.
2. SRI. RAMA S/O. OMU GOUDA,
AGE 56 YEARS, OCC: DRIVER,
R/O. SEA BIRD COLONY,
TODUR, KARWAR TALUK,
DISTRICT UTTARA KANNADA - 581307.
3. SRI. BALA S/O. OMU GOUDA,
AGE 45 YEARS, OCC: COOLIE,
R/O. CHENDILA, KARWAR,
UTTARA KANNADA DISTRICT - 581307
... PETITIONERS
(BY SHRI. J.S.SHETTY, ADVOCATE)
AND
1. SMT. REKHA VIGHNESHWAR GOUDA,
AGE 55 YEARS, OCC: HOUSEWIFE,
R/O. NEAR BHUDEVI TEMPLE,
BAITHKOL VILLAGE, KARWAR,
DISTRICT: UTTARA KANNADA - 581307.
2. SRI. YUVARAJ S/O. PURSU GOUDA,
AGE 53 YEARS, OCC: COOLIE,
R/O. SEA BIRD COLONY,
TODUR, KARWAR TALUK,
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DISTRICT : UTTARA KANNADA - 581307
3. SRI. PRAMOD S/O. PURSU GOUDA,
SINCE DECEASED BY HIS L.RS.
3A. SANJANA W/O. PRAMOD GOUDA,
AGE 33 YEARS, OCC: HOUSEHOLD WORK,
3B. PRAKAS S/O. PRAMOD GOUDA,
AGE 16 YEARS, OCC: STUDENT.
3C. PREMA D/O. PRAMOD GOUDA,
AGE 14 YEARS, OCC: STUDENT,
ALL ARE C/O. SEA BIRD COLONY,
TODUR, TQ. KARWAR,
DISTRICT UTTARA KANNADA-581324
4. SRI. SATISH S/O. PURSU GOUDA,
AGE 46 YEARS, OCC: SECURITY GUARD,
R/O. NEAR BHUDEVI TEMPLE,
BAITHKOL VILLAGE, KARWAR,
DISTRICT : UTTARA KANNADA - 581307.
5. SMT RANJANA W/O. MANI GOUDA,
AGE 47 YEARS, OCC: HOUSEWIFE,
R/O. QUARTERS NO.E61, ADITYA BIRLA,
CO. BINAGA POST, KARWAR TALUK,
DISTRICT UTTARA KANNADA - 581307
... RESPONDENTS
(SRI. VENKATESH M. KHARVI, ADVOCATE FOR R1, R2, R4 AND R5
AND FOR PROPOSED R3(A) TO R3(C);
R3 DECEASED;
R3(B) AND R3(C) ARE MINORS, REPTD. BY R3(A)
THIS CRP IS FILED UNDER SECTION 115 OF CPC, PRAYING
TO CALL FOR THE RECORDS OF THE EXECUTION CASE NO.2/2019
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE, KARWAR
AND THE ORDER DATED 13.09.2019 PASSED BY THE PRINCIPAL
CIVIL JUDGE, KARWAR IN EXECUTION CASE NO.2/2019 BE SET
ASIDE BY ALLOWING THIS REVISION PETITION.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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ORDER
1. The petitioners are before this Court, seeking for the following reliefs:
"To call for the records of the Execution Case No.2/2019 on the file of the Principal Civil Judge, Karwar, and the order dated 13.09.2019 passed by the Principal Senior Civil Judge, Karwar in Execution Case No.2/2019 may kindly be set aside, by allowing this revision petition."
2. Execution Case No.2/2019 had been filed for executing the compromise decree passed in O.S.No.47/2014. On the filing of the said execution proceedings, the petitioners herein who were the Judgment Debtors had contended that, the execution proceedings cannot be initiated without the final decree proceedings being resorted to and that the amount which had been claimed being in the nature of entitlement as also in the nature of recovery from the petitioner on the ground that the petitioner has drawn excess amount cannot be :4: countenanced inasmuch as the execution Court cannot go beyond the decree, the amounts sought for in the execution proceedings being more than what was required to be paid, the said execution proceedings are not sustainable.
3. The trial Court after considering the said objection rejected the contention of the petitioners on the ground that, since both the parties had compromised the suit and it is only a question of monies which are to be distributed, there was no requirement for filing another FDP proceedings, and as such rejected the contentions of the petitioners who were the Judgment Debtors therein. It is aggrieved by the same, the petitioners are before this Court.
4. Sri. J.S.Shetty, learned counsel appearing for the petitioners would again reiterate the submissions made before the execution Court and submit that, the suit being one for partition, no execution :5: proceedings could be initiated without final decree proceedings having culminated and he also reiterates that the amounts which have been claimed being allegedly on account of excess amount drawn by the petitioner, the same cannot be determined in the execution proceedings, inasmuch as there is a lis which would have to be decided, which cannot be so done in the said execution proceedings.
5. Per contra, Sri. Venkatesh M. Kharvi, learned counsel for the respondents submits that, the trial Court has rightly decided the matter. There are no final decree proceedings which are required inasmuch as there is a compromise arrived at to distribute the compensation amounts in terms of the agreement arrived at in the compromise petition. There is no requirement for dividing the properties by metes and bonds. Furthermore, he submits that the aspect of the petitioner having :6: withdrawn the excess amounts has been admitted and therefore, a claim has been made and the execution proceedings therefore are proper and valid as held by the trial Court.
6. Heard Sri. J.S.Shetty, learned counsel for the petitioner and Sri. Venkatesh M. Kharvi, learned counsel for the respondents. Perused the papers.
7. Admittedly, there is a compromise entered into in O.S.No.47/2014, which was a suit for partition and in the said suit what was sought for though as a partition was a share of the parties therein, in the enhanced compensation amount awarded in lieu of the acquisition of lands which were described in the suit schedule.
8. Thus, even when the suit was filed, the acquisition proceedings had been completed and compensation amounts awarded, there is no property which was available for partition by metes and bonds. In the :7: said suit, a compromise petition had been filed, wherein the respective parties had agreed to receive 1/3rd share of the enhanced compensation in the various land acquisition cases which were pending as on that date, wherein the amounts had been deposited.
9. After the compromise being entered into, the aforesaid execution proceedings came to be filed.
10. In my considered view and opinion, the suit cannot be said to be stricto sensu a partition suit requiring initiation of final decree proceedings. In the present case, it is only a claim as regards compensation amounts that too enhanced compensation amounts which are to be awarded in the various land acquisition cases filed by the parties. In that background, when the parties have agreed that each branch of the family is entitled for 1/3rd of the compensation amounts, the partition being only insofar as the amounts, the question of any final :8: decree proceedings being required to be initiated does not arise at all.
11. As regards the second issue relating to withdrawal of the excess amount or not, the fact remains that there are certain amounts which have been withdrawn by the petitioner from the SLAO. Whether the same is in excess or not is not material. The petitioner could not in the teeth of the compromise decree have withdrawn any amount from the SLAO. The parties having agreed that each branch has to receive 1/3rd share of the compensation amount, no particular branch could have withdrawn any amount without the consent and concurrence of the other party.
12. The withdrawal of the said amount by the petitioners/Judgment Debtors is completely dishonest and the same could not have been done.
13. In view thereof, I am of the considered opinion that, the interest of justice would be served by :9: directing the petitioners to deposit all amounts that have been received from the SLAO in the executing Court, the trial Court would also direct the SLAO to deposit any amounts remaining with the said SLAO in the said execution proceedings. In the event of any other parties having withdrawn the amount, such party is also directed to deposit the amount received in the execution Court. Thereafter, the executing Court to execute the compromise decree reflected in the compromise petition and decree at the rate of 1/3rd each to the different branches of the family.
14. With the above observation, the writ petition stands dismissed.
Sd/-
JUDGE SVH