Karnataka High Court
Sri N S Sudarshan vs Sri Vasuki Sathyagal on 10 August, 2017
Author: B.Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF AUGUST 2017
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
W.P. NO.30665 OF 2017 C/W
W.P.NO.11872 OF 2017 (GM-CPC)
IN W.P.NO.30665/2017
BETWEEN:
1. Sri. N.S. Sudarshan,
S/o Late N. Seetharamaiah,
Aged about 66 years,
R/at No.935, 1st Main Road,
Lakshmipuram,
Mysore - 570 004.
2. Sri. Shreyas,
S/o. N.S. Sudarshan,
Aged about 36 years,
R/at No.935, 1st Main Road,
Lakshmipuram,
Mysore - 570 004.
3. Sri. Yashas,
S/o. N.S. Sudarshan,
Aged about 32 years,
R/at No.935, 1st Main Road,
Lakshmipuram,
Mysore - 570 004.
....PETITIONERS
(By Sri. Prasanna V.R. Advocate)
AND:
1. Sri. Vasuki Sathyagal,
S/o. Prof. S.S. Nagaraju,
Aged about 53 years,
2
R/at NO.5915, Chstnut Place,
Camarillo, CA-93012, USA.
2. Sri. Arun Sathyagal,
S/o. Prof. S.S. Nagaraju,
Aged about 44 years,
R/at 566, New Field Avenue,
No.6, Stamford, CT-06905, USA.
Both are rep. by his GPA Holder,
Dr. R. Doreswamy,
R/at No.649/77, 6th Cross,
5th Main Road,
RPC Layout, Vijayanagar,
Bengaluru - 560 040.
... RESPONDENTS
(By Sri. Mohan S., Advocate for R1 and R2)
This Writ Petition is filed under Article 227 of Constitution
of India praying to quash the order dated:23.06.2017 on
I.A.No.5 in Ex.P.No.346/2014 passed by The Learned II Addl.
Senior Civil Judge and CJM, Mysore, issuing delivery warrant and
execute the same by breaking open the lock with Police help vide
Annexure-A and etc.
IN W.P.NO.11872/2017
BETWEEN:
1. Sri. N.S. Sudarshan,
S/o Late N. Seetharamaiah,
Aged about 66 years,
R/at No.935, 1st Main Road,
Lakshmipuram,
Mysore - 570 004.
2. Sri. Shreyas,
S/o. N.S. Sudarshan,
Aged about 36 years,
3
R/at No.935, 1st Main Road,
Lakshmipuram,
Mysore - 570 004.
3. Sri. Yashas,
S/o. N.S. Sudarshan,
Aged about 32 years,
R/at No.935, 1st Main Road,
Lakshmipuram,
Mysore - 570 004.
....Petitioners
(By Sri. Prasanna V.R. Advocate)
AND:
1. Smt. Nalini Srikanta,
W/o Late M.N. Srikanta,
Aged about 73 years,
R/at No. 935/1, 2nd Cross,
1st Main Road,
Lakshmipuram,
Mysore - 570 004.
2. Sri. Arjun,
S/o. Late Sachi & Lt. Col. R. Nagendra,
Aged about 53 years,
R/at No.649/77, 6th Cross,
5th Main Road,
RPC Layout, Vijayanagar,
Bengaluru - 560 040.
Both are reptd. by his GPA Holder,
Dr. R. Doreswamy,
R/at No.649/77, 6th Cross,
5th Main Road,
RPC Layout, Vijayanagar,
Bengaluru - 560 040.
...Respondents
(By Sri. Mohan S., Advocate for R1 and R2)
4
This Writ Petition is filed under Article 227 of Constitution
of India praying to quash the order dated:07.12.2016 and
25.02.2017 in Ex.P.No.186/2015 passed by The Learned II Addl.
Senior Civil Judge and CJM, Mysore, issuing delivery warrant and
direct the officials of the court to execute the delivery warrant
with police held by allowing the application filed by the decree
holder No.5 vide Annexure-A and etc.
These petitions coming on for Preliminary Hearing this day,
the court made the following:
ORDER
These writ petitions have been filed by the judgment debtors 1 to 3 against the order dated 23.6.2017 on I.A.No.5 made in Ex.P.No.346/2014 and the orders dated 7.12.2016 and 25.2.2017 in Ex.P.No.186/2015 issuing delivery warrant for taking possession with the assistance of the local police.
2. The respondents are the decree holders filed a suit in O.S.No.419/2007 for partition and separate possession of the suit schedule properties granting 1/6th share in terms of the compromise petition dated 29.1.2011. Thereafter, a fresh compromise petition came to be drawn in the same suit on 21.3.2014. According to the respondents, on 21.3.2014 final decree proceedings came to be drawn. Aggrieved by the same, plaintiffs 3 and 4 filed Execution Petition No.346/2014 seeking 5 delivery of possession of the property allotted to their share i.e.'C' schedule property. Plaintiff No.5 also filed Execution Petition No.186/2015 seeking delivery of possession allotted to his share i.e. 'D' schedule in final decree proceedings. Thereafter on 23.6.2017 and on 25.2.2017, the executing court without considering the objections allowed the application filed by the decree holders by issuing delivery warrant as prayed. Hence, the present petitions are filed.
3. When the matter was posted for admission on 19.7.2017 in W.P.No.30665/17, learned counsel Sri. V.R. Prasanna, appearing for the petitioners/judgment debtors seeks three months time to implement the decree passed by the trial court and that he will file necessary affidavits to that effect. Accordingly, the first petitioner filed affidavits on behalf of the petitioner Nos.2 and 3 which read as under: In W.P.No.30665/2017
" I Sri. N.S. Sudarshan, S/o. Late N. Seetharamaiah, aged about 66 years, residing at No.935, 1st Main Road, Lakshmipuram, Mysore-570 004, today at Mysore, do hereby state on solemn affirmation as under:
1. I am the 1st Petitioner in the above case and I am acquainted with the facts of the case. I am 6 swearing to this Affidavit on behalf of the Petitioners No.2 and 3 also as instructed by them.
2. I State that the present writ petition is filed assailing the order dated:23.06.2017 on I.A.No.5 filed under Section 151 of CPC in Ex.P.No.346/2014 passed by the learned II Addl.
Senior Civil Judge and CJM, Mysore, vide Annexure-A, to the writ petition, directing the Court officials to execute the Delivery Warrant by breaking open the lock with the Police help as prayed for by the Decree Holders.
3. I Submit that since the residential premises which has been in my possession being very old, requires renovation so as to enable the other sharers to get their share in the said property in terms of the final decree drawn on 25.02.2014 pursuant to the Compromise Petition in O.S.No.419/2007 on the file of the learned II Addl. Senior Civil Judge & CJM, Mysore, in view of the fact that division of the said property without erection/renovation of wall within area allotted to me will damage the entire building and may cause collapse also. Therefore, in order to enable me to get the renovation work done or wall erected within the property allotted to my share, minimum period of three months may be required and therefore, the execution of decree may be deferred till such time. 7
4. I State that I will voluntarily vacate and handover the area which is allotted to the share of the Respondents/Dr. Hr.No.3 and 4 within three months from today.
I do swear in the name of the God that this is my name and signature and the contents of this affidavit are all true to the best of my knowledge, information and belief.
In W.P.No.11872/2017.
I Sri. N.S. Sudarshan, S/o. Late N. Seetharamaiah, aged about 66 years, residing at No.935, 1st Main Road, Lakshmipuram, Mysore - 570 004, today at Mysore, do hereby state on solemn affirmation as under:-
1. I am the 1st Petitioner in the above case and I am acquainted with the facts of the case. I am swearing to this Affidavit on behalf of the Petitioners No.2 and 3 also as instructed by them.
2. I State that the present writ petition is filed assailing the order dated:25.02.2017 on I.A.No. filed under Section 151 of CPC in Ex.P.No.186/2015 passed by the learned II Addl. Senior Civil Judge and CJM, Mysore, vide Annexure-A, to the writ petition, directing the Court officials to execute the Delivery Warrant by entering through the main door of the premises belong to J. Dr.No.1 to 3 with the Police help as prayed for by the Decree Holders. This 8 Hon'ble court by an order dated:22.03.2017 while directing issuance of notices to the respondents, was pleased to grant an interim order of stay for a period of four weeks which has been continued from time to time.
3. I Submit that since the residential premises which has been in my possession being very old, requires renovation so as to enable the other sharers to get their share in the said property in terms of the final decree drawn on 25.02.2014 pursuant to the Compromise Petition in O.S.No.419/2007 on the file of the learned II Addl.
Senior Civil Judge & CJM, Mysore, in view of the fact that division of the said property without erection/renovation of wall within area allotted to me will damage the entire building and may cause collapse also. Therefore, in order to enable me to get the renovation work done or wall erected within the property allotted to my share, minimum period of three months may be required and therefore, the execution of decree may be deferred till such time.
4. I State that I will voluntarily vacate and handover the area which is allotted to the share of the Respondents/Dr. Hr.No.1 and 3 within three months from today.
I do swear in the name of the God that this is my name and signature and the contents of this 9 affidavit are all true to the best of my knowledge, information and belief."
4. Sri. Mohan .S, appearing for the decree holders fairly submits that in terms of the affidavit of undertaking filed by the judgment debtors, the matter may be disposed of.
5. The said submission is placed on record. In the separate affidavits filed by the judgment debtors, they have categorically stated that they will voluntarily vacate and hand over the properties allotted to the share of the decree holders 3 and 4 in W.P. No.30665/2017 and petitioners 1 and 3 in W.P.No.11872/2017 within three months from today.
6. Hence, these writ petitions are disposed of. Petitioners are granted three months time from today to vacate and hand over possession of the share allotted to the decree holders without driving them to seek further execution.
7. With the above observations, these writ petitions stand disposed of.
Sd/-
JUDGE Msu