Karnataka High Court
Sri Ningegowda @ Gendegowda vs Sri Lingaraju on 23 January, 2018
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION NO.58226/2017(GM-CPC)
BETWEEN:
SRI NINGEGOWDA @ GENDEGOWDA,
S/O LATE SRI LINGEGOWDA @ BUSIGOWDA,
AGED ABOUT 71 YEARS,
AGRICULTURIST
R/AT ABALAVADI VILLAGE,
KOPPA HOBLI, MADDUR TALUK
MANDYA DISTRICT-571422.
... PETITIONER
(BY SRI G. M. ANANDA, ADVOCATE)
AND:
1. SRI LINGARAJU,
S/O THIMMEGOWDA @ ANKEGOWDA,
AGED ABOUT 70 YEARS,
R/AT NO.65, C. V. ROAD,
BANNIMANTAP,
MYSORE-570015.
2. SMT. YASHODAMMA,
W/O K MARIGOWDA,
AGED ABOUT 55 YEARS,
KOPPA VILLAGE, MADDUR TALUK
MANDYA DISTRICT-571429.
2
3. SMT. JAYALAKSHMAMMA
W/O S. V. NAGARAJU,
D/O LATE LINGEGOWDA @ BUSIGOWDA,
AGED ABOUT 50 YEARS,
HOUSE WIFE R/AT NO.30/A,
GEETHA NILAYA, NAGENDRA BLOCK,
B.S.K. 1ST STAGE,
BANGALORE-560050.
4. SMT. KALPANA,
W/O K. S. CHOWDEGOWDA,
D/O LATE LINGEGOWDA @ BUSIGOWDA
AGED ABOUT 47 YEARS,
HOUSE WIFE
CHAIRMAN KARIYAPA'S HOUSE,
R/AT KEELARA VILLAGE,
MANDYA TALUK,
MANDYA DISTRICT-571 450.
... RESPONDENTS
****
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE
THE IMPUGNED ORDER DATED 7.9.2017 PASSED BY THE
SENIOR CIVIL JUDGE, MADDUR REJECTING I.A.NO.1 FILED
BY THE PETITIONER UNDER SECTION 151 OF THE CODE OF
CIVIL PROCEDURE, 1908 IN O.S.NO.21/2016 UNDER
ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
3
ORDER
The present plaintiff who is the judgment debtor in O.S. No.102/1984 is before this Court against the order dated 7.9.2017 on I.A. No.1 made in O.S. No.21/2016 dismissing the application filed by the plaintiff under Section 151 of Code of Civil Procedure to stay further proceedings in Execution No.145/2009.
2. The present 1st respondent who is the plaintiff in O.S. No.102/1984 filed the suit for partition and separate possession in respect of seven items of properties, morefully described in the plaint. After contest, the said suit came to be decreed on 15.4.1985. The said Judgment & Decree granting half share to the plaintiff has reached finality .
3. Thereafter the 1st respondent who is the plaintiff - decree holder in O.S. No.102/1984 filed FDP No.3/2000 to implement the decree. The same came to be allowed on 4 13.10.2009. Aggrieved by the order passed in the FDP, the present petitioner filed R.A. No.150/2009 before the lower appellate Court. The lower appellate Court considering the entire material on record dismissed the appeal. Against the said Judgment & Decree passed by the lower appellate Court, the present petitioner filed RSA No.2412/2011 and the said appeal came to be dismissed as withdrawn at the instance of the present petitioner with liberty to the petitioner to take recourse to other remedy available in accordance with law.
4. Thereafter the present suit O.S. No.21/2016 filed by the petitioner against defendant Nos.1 to 4 in respect of Sy.No.461/4B measuring 20 guntas situated at Abalavadi village, Koppa hobli, Maddur taluk, morefully described in the schedule to the plaint (the same was the subject matter of O.S. No.102/1984 as item No.3) for setting aside the Judgment & Decree dated 15.4.1985 made in O.S. No.102/1984 and consequently declare that the plaintiff has 5 acquired right, title and interest over the suit schedule property as per the sale deed dated 26.2.1979 and he is the absolute owner in possession and enjoyment of the suit schedule property. The 1st defendant filed the written statement denying the plaint averments and contended that the very suit filed by the plaintiff is not maintainable in view of the decree made in O.S. No.102/1984 and dismissal of Regular Appeal No.150/2009 by the lower appellate Court and RSA No.2412/2011 by this Court and therefore sought for dismissal of the application. In the interregnum, the decree holder (present Respondent No.1) filed Execution Petition NO.145/2009 to execute the decree dated 15.4.1985 made in O.S. No.102/1984.
5. During the pendency of the proceedings, the present petitioner - plaintiff filed I.A. No.1/2015 under Section 151 of Code of Civil Procedure to stay further proceedings in Execution Petition No.145/2009, pending disposal of the suit, reiterating the averments made in the 6 plaint. The said application was opposed by the defendants by filing objections. The trial Court considering the application and the objections by the impugned order dismissed the application. Hence the present writ petition is filed.
6. I have heard the learned counsel for the petitioner.
7. Sri G.M. Ananda, learned counsel for the petitioner vehemently contended that the impugned order passed by the trial Court dismissing the application to stay further proceedings in Execution No.145/2009 is erroneous and contrary to the material on record. He further contended that the plaintiff filed the present suit on the basis of the registered sale deed dated 26.2.1979 and that he is in possession and enjoyment of the same and the Judgment & Decree dated 15.4.1985 made in O.S. NO.102/1984 is not binding on him. Therefore the trial Court ought to have allowed the application till disposal of the present suit. He 7 further contended that RSA No.2412/2011 was not dismissed on merits, but at the instance of the present petitioner, RSA was withdrawn with liberty to the petitioner to take recourse to other remedy available in accordance with law. Therefore he filed the present suit. Till the title of the plaintiff is declared in the present suit, further proceedings in Execution should not be proceeded with. Otherwise, the very purpose for which the present suit is filed is frustrated. Therefore he sought to allow the writ petition by quashing the impugned order passed by the trial Court.
8. Having heard the learned counsel for the petitioner, it is not in dispute that the 1st respondent who is the plaintiff in O.S. No.102/1984 filed the suit for partition in respect of seven items claiming half share. It is also not in dispute that the present petitioner is the 3rd defendant in the said suit. After contest, O.S. No.102/1984 came to be decreed on 15.4.1985 granting half share to the plaintiff 8 therein (1st respondent in the present suit). The said Judgment & Decree has reached finality. Either the present petitioner or other contesting defendants have not challenged the said decree. It is also not in dispute that to implement the Judgment & Decree, the 1st respondent filed FDP No.3/2000. The said FDP was also contested by the present petitioner and ultimately FDP was drawn on 13.10.2009. Against the said FDP, the present petitioner filed R.A. No.150/2009 before the lower appellate Court. After contest, the said Regular Appeal came to be dismissed on 29.11.2011. Against the concurrent findings of fact recorded by the Courts below, the petitioner filed RSA NO.2412/2011 and this Court by an order dated 12.11.2013 dismissed the appeal as withdrawn with liberty to the petitioner to take recourse to other remedy available in accordance with law. In the interregnum, the decree holder filed Execution No.145/2009 to implement the decree dated 15.4.1985.
9
9. It is clear from the material on record that the decree granted in favour of the 1st respondent (plaintiff in O.S. No.102/1984) on 15.4.1985 granting half share has reached finality. What was contested by the present petitioner was only order passed in FDP No.3/2000 and not the original decree. Original decree still stands and binding on both the parties. It is also not in dispute that the Final Decree Proceedings drawn in FDP No.3/2000 has reached finality culminating dismissal of RSA No.2412/2011 as withdrawn at the instance of the present petitioner. It is for the petitioner to establish in the present suit as to how he is entitled for declaration and also as to how Judgment & Decree in O.S. No.102/1984 dated 15.4.1985 is not binding on him. It is also not in dispute that the present petitioner filed O.S. No.21/2016 for declaration and other reliefs after he became unsuccessful in O.S. No.102/1984, FDP No.3/2000, RA No.150/2009 and RSA 2412/2011. Till disposal of the present suit, according to the petitioner 10 there should not be any further proceedings in Execution No.145/2009 to implement the decree passed in O.S. No.102/1984. That is not the intent of the legislature while enacting the provisions of Code of Civil Procedure or any other law and if such proceedings are allowed, there will not be end for litigation. It amounts to daring raid on the Court.
10. The trial Court considering the application and the objections recorded a finding that undoubtedly, the present defendant No.1 filed O.S. No.102/1984 against the present plaintiff and the other defendants. In the said suit, a decree was passed in favour of the present defendant NO.1 and his share was declared as half share in all the suit schedule properties. Admittedly, the present plaintiff has also contested O.S. No.102/1984 and the said suit was decreed. Based on the decree, the present defendant No.1 filed FDP 3/2000. Admittedly, the present plaintiff was also one of the party in the said FDP 3/2000. The said FDP 11 3/2000 was decreed in favour of the plaintiff and a final decree was passed by the Court. Thereafter, the present plaintiff has preferred R.A. No.150/2009 and the first appellate Court dismissed the said appeal and confirmed the Judgment & Decree passed in FDP No.3/2000. Thereafter the present plaintiff has preferred RSA No.2412/2011 before this Court wherein he himself has withdrawn the said appeal by filing a memo. These things clearly establish that the present plaintiff has actively participated in all the proceedings held before the trial Court, first appellate Court and this Court. After dismissal of RSA No.2412/2011 on 12.11.2013, the plaintiff has come with the present suit on 10.2.2016. Along with the suit, the present I.A. has been filed by the plaintiff.
11. The trial Court further observed that by looking to the proceedings held before the Court in Ex.No.145/2009, it is an undisputed fact that the present plaintiff has actively participated in the proceedings. By 12 filing the present suit, the plaintiff is challenging the judgment and decree passed in O.S. No.102/1984. Since the plaintiff himself has challenged the Judgment and Decree passed in FDP No.3/2000 in R.A. No.150/2009 before the first appellate Court and in RSA No.2412/2011 before this Court and has become unsuccessful, now by filing a suit, he cannot seek stay of proceedings of Ex.No.145/2009 and accordingly rejected the application.
12. The trial Court considering the entire material on record has rightly rejected the application. The reasons assigned and the conclusion arrived at by the trial Court are just and proper. The same is in accordance with law. The petitioner has not made out any ground to interfere with the impugned order passed by the trial Court in exercise of powers under Article 227 of the Constitution of India.
13. The Hon'ble Supreme Court while considering the provisions of Order 21 Rules 97, 99 & 101 of Code of Civil 13 Procedure in the case of BOOL CHAND (DEAD) THROUGH LEGAL REPRESENTATIVES AND OTHERS .vs. RABIA AND OTHERS reported in (2016)14 SCC 270 held as under:
12. While a genuine petition for execution of a decree can certainly be considered, the court cannot be oblivious of frivolous objections being filed after a decree is passed in long-drawn contested proceedings. Attempt to deprive the decree-holder of benefit of such decree should be discouraged by the court where such objection is raised. The impugned order is thus, clearly erroneous and unsustainable and not a result of sound judicial approach.
14. In view of the admitted facts stated supra, if the contention of the learned counsel for the petitioner is accepted, the very decree passed by the trial Court after contest on 15.4.1985 made in O.S. No.102/1984 will be futile and the conduct of the petitioner is nothing but abusing the process of the Court and daring raid on the Court. Such litigation cannot be encouraged and should be 14 stopped at the bud. Such approach is only condemnable. These acts of the petitioner are against majesty of law and the present petitioner has acted in the manner to cause colossal insult to justice and the concept of speedy disposal of civil litigation.
15. For the reasons stated above, the writ petition is dismissed with costs of Rs.10,000/- (Rupees ten thousand only) payable by the petitioner to the respondents.
Sd/-
JUDGE Gss/-