Karnataka High Court
Sri Nagaraju vs Sri Shivalingegowda on 29 May, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 1806 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 1806 OF 2023 (GM-CPC)
BETWEEN:
SRI NAGARAJU
AGED ABOUT 54 YEARS,
S/O LATE LINGEGOWDA
RESIDENT OF KERALALUSANDRA VILLAGE,
KASABA HOBLI, KANAKAPURA TALUK
RAMANAGARA DISTRICT - 562 117.
...PETITIONER
(BY SRI. MOHAMMED AKHIL, ADVOCATE)
AND:
1. SRI SHIVALINGEGOWDA
AGED ABOUT 69 YEARS,
S/O LATE BASAVEGOWDA
CHEERANAKUPPE VILLAGE,
Digitally MALAGALU POST, KASABA HOBLI
signed by KANAKAPURA TALUK
VANDANA S RAMANAGARA DISTRICT - 562 117.
Location: 2. SMT PUTTAMMA
High Court of AGED ABOUT 79 YEARS,
Karnataka D/O KARIGOWDA
YERENAHALLI VILLAGE
MARALAVADI HOBLI,
KANAKAPURA TALUK
RAMANAGARA DISTRICT - 562 117.
...RESPONDENTS
(BY SMT. KAVYASHREE G.S., ADVOCATE FOR R-1;
R-2 SERVED)
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WP No. 1806 of 2023
THIS W.P IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
28.11.2022 IN IA UNDER ORDER 21 RULE 90, 91 AND 92 R/W SEC
151 OF CPC AND IA UNDER ORDER 21 RULE 29 OF CPC PASSED
BY THE SENIOR CIVIL JUDGE AND JMFC, KANAKAPURA,
RAMANAGARA IN EX.PETITION NO.23/2022 VIDE ANNEXURE-A.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This petition is directed against the impugned order dated 28.11.2022 passed in Ex.No.23/2022 on the file of the Senior Civil Judge & JMFC, Kanakapura, whereby the application filed by the petitioner under Order 21 Rule 90, 91 and 92 r/w 151 CPC and application under Order 21 Rule 29 CPC were rejected by the trial Court on the ground that the Execution Proceedings were disposed of.
2. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record.
3. The material on record discloses that respondent No.1
- decree holder instituted the aforesaid Execution proceedings against respondent No.2 - judgment debtor to execute the Compromise Decree dated 15.09.2016 passed in O.S.No.196/2016.
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4. After coming to know about the aforesaid Compromise Decree, petitioner instituted suit in O.S.No.242/2018 in which the respondents have entered appearance and the same is pending adjudication before the trial Court. It is the grievance of the petitioner that despite the aforesaid suit in O.S.No.242/2018 filed by the petitioner pending against the respondents, respondent No.1 filed an application on 17.10.2022 in the instant Execution No.23/2022 and sought for permission to issue delivery warrant pursuant to executing court closing the execution proceedings. In the execution proceedings, respondent No.2 - judgment debtor remained ex-parte and did not contest the proceedings. The trial Court closed the execution proceedings vide Order dated 17.11.2022 by placing reliance upon the Sale Deed and report of the Court Commissioner. At this stage, petitioners filed the instant application seeking adjudication of their claim over the right, title, interest, possession over the subject matter of the execution proceedings by filing the instant application. The trial Court proceeded to pass the impugned order rejecting application / summarily dismissing the application without holding necessary enquiry as contemplated under Order 21 Rules 97 to 104 CPC and consequently, on this ground alone and in view of the fact that the -4- WP No. 1806 of 2023 impugned order passed by the trial Court is without providing opportunity to the petitioner to put-forth his claim and contest the claim of respondent No.1 - decree holder is not only opposed to the principles of natural justice but also contrary to the aforesaid provisions.
5. Under these circumstances, though several contentions have been urged by both sides in support of their respective claims, without expressing any opinion on the merits / demerits of the rival claims, I deem it just and proper to set aside the impugned order and remit the matter back to the executing Court for reconsideration of the application filed by the petitioner afresh in accordance with law.
6. In the result, I pass the following:
ORDER
(i) The petition is hereby allowed.
(ii) The impugned order 28.11.2022 passed on I.A. in Ex.No.23/2022 on the file of the Senior Civil Judge & JMFC, Kanakapura, is hereby set aside.
(iii) Matter is remitted back to the trial Court for reconsideration afresh in accordance with law. -5- WP No. 1806 of 2023
(iv) Parties undertake to appear before the executing Court on 19.06.2023 without awaiting further notice.
(v) Liberty is reserved in favour of the respondents to file their objections to the application filed by the petitioner pursuant to which the trial Court shall consider and pass appropriate orders on the application, in accordance with law.
(vi) All rival contentions between the parties on all aspects of the matter are kept open and no opinion is expressed on the same.
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JUDGE SV List No.: 1 Sl No.: 65