Karnataka High Court
Khatal Sab S/O. Karim Sab Fatteh vs Ponnappa S/O. Mallappa Vajantari on 22 July, 2014
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF JULY, 2014
BEFORE
THE HON'BLE MR. JUSTICE H.BILLAPPA
WRIT PETITION NO.104973/2014 (GM-CPC)
BETWEEN
SHRI. KHATAL SAB S/O. KARIM SAB FATTEH
AGE: 56 YEARS, OCC: BUSINESS
R/O. BABLE GALLI CROSS,
MUSLIM GALLI,
ANGOL, BELGAUM-590 016. ... PETITIONER
(BY SRI. MADANMOHAN M. KHANNUR, ADV.)
AND
1. SHRI. PONNAPPA S/O. MALLAPPA VAJANTARI
AGE: MAJOR, OCC: BUSINESS,
R/O. KORVI GALLI, WADA ANGOL
BELGAUM-590 016.
2. SHRI. PRAKASH S/O.MALLAPPA VAJANTARI
AGE: MAJOR, OCC: BUSINESS,
R/O. KORVI GALLI, WADA ANGOL,
BELGAUM-590 016.
3. SHRI. LAXMAN S/O. MALLAPPA VAJANTARI
AGE: MAJOR, OCC: BUSINESS,
R/O. KORVI GALLI, WADA ANGOL,
BELGAUM-590 016.
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4. SHRI. AHMED BASHA S/O. KARIM SAB FATTEH,
AGE: MAJOR, OCC: BUSINESS.
R/O. BABLE GALLI CROSS,
MUSLIM GALLI, ANGOL, BELGAUM-590 016.
5. SHRI.SHOUKAT S/O KARIM SAB FATTEH
AGE: MAJOR, OCC: BUSINESS
R/O. BABLE GALLI CROSS,
MUSLIM GALLI, ANGOL
BELGAUM-590 016. ... RESPONDENTS
(BY SRI. SANGRAM S. KULKARNI, ADV. FOR R1-R3,
NOTICE TO R.4 DISPENSED WITH,
R.5 SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED 07.04.2014 IN EX.P.NO.726/2014
PASSED BY THE COURT OF III ADDL.CIVIL JUDGE & JMFC,
BELGAUM, VIDE ANNEXURE-D, AND DIRECT THE COURT OF
III ADDL.SENIOR CIVIL JUDGE, BELGAUM, TO CONTINUE THE
INTERIM STAY DATED 10.03.2014 IN R.A.NO.35/2014 VIDE
ANNEXURE-C.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS
DAY, THE COURT, MADE THE FOLLOWING:
ORDER
Notice to respondent No.4 is dispensed with as no relief is claimed against him.
2. In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner has called in question the order dated 7.4.2014 in E.P.No.726/2014 vide Annexure- :3: 'D' and to direct the III Addl. Senior Civil Judge, Belgaum, to continue interim stay in R.A.No.35/2014.
3. By the impugned order at Annexure-'D', the executing court has ordered to issue delivery warrant with police help.
4. Aggrieved by that, the petitioner has filed this writ petition.
5. Briefly stated the facts are;
The respondents 1 to 3 had filed suit in O.S.No.931/2008 for ejection of the petitioner and
respondents 4 and 5. The trial court by its judgment and decree dated 3.2.2014 has decreed the suit and has granted one month's time to vacate and deliver vacant possession of the suit property. Aggrieved by that, the petitioner has preferred an appeal in R.A.No.35/2014. The appellate court has stayed the judgment and decree till the next date of hearing. Thereafter, the respondents 1 to 3 have brought to the notice of the court that they had entered caveat. :4: Therefore, the appellate court has recalled the order of stay. In the meanwhile, the respondents 1 to 3 have filed execution petition in E.P.No.726/2014. In the said execution, the executing court has ordered for issue of delivery warrant with police help. Aggrieved by that, the petitioner has filed this writ petition.
6. The learned Counsel for the petitioner contended that the impugned order cannot be sustained in law. He also submitted that stay was granted by the appellate Court. In the execution proceedings the office has noted that no appeal is pending. Therefore, the executing court has ordered for issue of delivery warrant with police help which is not correct. He also submitted that the appellate court should have continued the stay. Therefore, the impugned order passed by the executing court cannot be sustained in law. The appellate court may be directed to continue the stay pending disposal of the appeal.
7. As against this, the learned Counsel for the respondents 1 to 3 submitted that the respondents 1 to 3 had :5: entered caveat and without hearing them stay was granted. When it was brought to the notice of the appellate court stay has been recalled. Therefore, the impugned order does not call for interference.
8. I have carefully considered the submissions made by the learned Counsel for the parties.
9. The point that arise for my consideration is; Whether the impugned order calls for interference?
10. It is relevant to note, the suit in O.S.No.931/2008 has been filed by the respondents 1 to 3 for ejection of the petitioner. The suit has been decreed on 3.2.2014. The petitioner has preferred an appeal in R.A.No.35/2014. The appellate court has granted stay. Thereafter, when it was brought to the notice of the appellate court that caveat was entered by the respondents 1 to 3 the appellate court has recalled the stay. In the meanwhile, the executing court has ordered for issue of delivery warrant with police help. In the execution proceedings, it is noted by the office that no appeal :6: is pending which is not correct. The petitioner has preferred an appeal. Stay was also granted. In the circumstances, it is appropriate to direct the appellate court to dispose of the appeal itself within a specified period.
11. Accordingly, the writ petition is allowed and the impugned order passed by the executing court is hereby set aside. The appellate court is directed to dispose of R.A.No.35/2014 within four months from the date of this order. Till the disposal of the appeal, the judgment and decree passed in O.S.No.931/2008 stands stayed. It is made clear, the petitioner shall not seek unnecessary adjournment in the appeal and shall cooperate in disposal of the appeal. If the petitioner seeks unnecessary adjournments, the appellate court can pass appropriate orders vacating stay.
Sd/-
JUDGE Sub/