Karnataka High Court
Smt. Dr. Rajeshwari vs Sri. H. G. Prakash on 28 March, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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WP No. 9944 of 2017
C/W WP No. 10657 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 9944 OF 2017 (GM-CPC)
C/W
WRIT PETITION NO. 10657 OF 2018 (GM-CPC)
IN WP NO. 9944/2017
BETWEEN:
SMT. DR. RAJESWARI
W/O R. H. PATIL,
AGED ABOUT 40 YEARS,
SHIVAPPA NAYAKA BADAVANE,
VINOBHANAGARA, SHIVAMOGGA - 01.
...PETITIONER
Digitally
signed by
(BY SRI. V. F. KUMBAR, ADVOCATE)
NARASIMHA
MURTHY
VANAMALA AND:
Location:
HIGH
COURT OF
KARNATAKA
SRI. H. G. PRAKASH
S/O LATE GANGADHARAIAH,
AGED ABOUT 58 YEARS,
R/AT NO.239/21, 22 A MAIN,
JUDICIAL LAYOUT, GKVK,
BANGALORE - 19.
...RESPONDENT
(BY SRI. NITYANANDA K. R., ADVOCATE)
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WP No. 9944 of 2017
C/W WP No. 10657 of 2018
THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER DATED 23.02.2017 PASSED IN
EXECUTION NO.5/2014 ON IA.NO.X FILED BY THE
PETITIONER UNDER SECTION 47 R/W 151 OF CPC
PASSED BY THE HON'BLE 1ST ADDITIONAL CIVIL
JUDGE AND JMFC AT SHIVAMOGGA AS PER
ANNEXURE-A AND ALLOW THE IA.NO.10 FILED BY THE
PETITIONER AS PER ANNEXURE-M1.
IN WP NO. 10657/2018
BETWEEN:
SMT. DR. RAJESHWARI
W/O RUDRAIAH PATIL,
AGED ABOUT 41 YEARS,
RESIDING AT SHIVAPPANAYAKA BADAVANE,
VINOBHA NAGAR, SHIVAMOGGA.
...PETITIONER
(BY SRI. V.F.KUMBAR FOR SMT. USHA M. V.,
ADVOCATES)
AND:
SRI. H. G. PRAKASH
S/OLATE GANGADHARAIAH,
AGED ABOUT 58 YEARS,
MARUTHI NAGAR,
MAHAVEER ENCLOVE APARTMENTS,
1ST STAGE, YALAHANKA,
BANGALORE - 560 064.
...RESPONDENT
(BY SRI. NITYANANDA K.R., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO
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WP No. 9944 of 2017
C/W WP No. 10657 of 2018
QUASH THE ORDER DATED 02.03.2018 PASSED BY
THE LEARNED 1ST ADDITIONAL CIVIL JUDGE AND
JMFC AT SHIVAMOGGA IN EX.PETITION NO.5/2014 AT
ANNEXURE-H.
THESE PETITIONS, COMING ON FOR
PRELIMINARY HEARING IN "B" GROUP, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
These petitions are by the Judgment Debtor in Ex. No.5/2014 on the file of the I Additional Civil Judge and JMFC, Shivamogga [for short, 'the executing Court']. In the writ petition in W.P. No.9944/2017, the petitioner has impugned the executing Court's order dated 23.02.2017 in Ex. No.5/2014, and the executing Court by this order has rejected the petitioner's application [I.A. No.X] under Section 47 read with Section 151 of the Code of Civil Procedure, 1908 [for short, 'CPC']. The petitioner has filed this application to determine the questions canvassed in the affidavit supporting the application under Section 47 of CPC. The petitioner in the writ petition in W.P. No.10657/2018 has called in question the executing Court's order dated -4- WP No. 9944 of 2017 C/W WP No. 10657 of 2018 02.03.2018 in Ex. No.5/2014, and the executing Court by this order has issued arrest warrant against the petitioner.
2. Sri. V F Kumbar, the learned counsel for the petitioner, submits that the petitioner's application under Section 47 of CPC is essentially premised in the ground that the decree in O.S. No.182/2012, which is put into execution in the present execution case, is an ex parte Judgment and notwithstanding the suit commenced by the respondent's brother in O.S. No.102/2011 disputing the respondent's title to the property. The petitioner relying upon the aforesaid proceedings wanted to canvass that the respondent could not have sought for the petitioner's ejectment without vindication of his title to the subject property.
3. Sri. V F Kumbar submits that however, during the pendency of the present petitions, the suit in O.S. No.102/2011 commenced by the respondent's -5- WP No. 9944 of 2017 C/W WP No. 10657 of 2018 brother has culminated in favour of the respondent with affirmation of his title to the property. The petitioner has also surrendered possession through the Court process to the respondent and the respondent has also acknowledged receipt of possession. In the light of these circumstances, the petition in W.P. No.9944/2017 does not survive for consideration.
4. As against the order impugned in the petition in W.P. No.10657/2018, Sri. V F Kumbar submits that in view of the express bar, the executing Court could not have issued arrest warrant against the petitioner, a lady, and he submits that the respondent is proceeding with the execution case only to recover alleged rental arrears. If indeed the proceedings are being continued only to recover the alleged arrears in terms of the decree, the respondent must pursue the execution proceedings but cannot seek petitioner's civil detention in view of the express -6- WP No. 9944 of 2017 C/W WP No. 10657 of 2018 provision of Section 54 of CPC. In the light of the afore, the following:
ORDER [a] The writ petition in W.P. No.9944/2017 stands disposed of as not surviving for consideration.
[b] The writ petition in W.P.
No.10657/2018 is allowed,
quashing the order dated
02.03.2018 in Ex. No.5/2014 on the file of the I Additional Civil Judge and JMFC, Shivamogga, with liberty to the respondent to otherwise prosecute the execution proceedings as permissible in law.
Sd/-
JUDGE AN/-