Smt H Girijamba vs Sri Munisonnappa on 16 November, 2017

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Karnataka High Court

Smt H Girijamba vs Sri Munisonnappa on 16 November, 2017

Bench: B.Veerappa

                             1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 16TH DAY OF NOVEMBER, 2017

                         BEFORE

        THE HON'BLE Mr. JUSTICE B.VEERAPPA

     WRIT PETITION NO.32144 OF 2016 (GM-CPC)

BETWEEN:

1.     Smt. H. Girijamba
       W/o Ramaprasada,
       Aged about 67 years,
       R/at No.283, 1st Floor,
       3rd Avenue, 3rd Main,
       Teacher's colony,
       Koramangala,
       Bengaluru - 560 034.

2.     Smt. H.N. Savithramma
       @ Sundaramma,
       W/o Late M.S. Subbarao,
       D/o Late H. Nanjundaiah,
       Aged about 75 years,
       R/at No.283, 1st Floor,
       3rd Avenue, 3rd Main,
       Teacher's colony,
       Koramangala,
       Bengaluru - 560 034

3.     Smt. H.N. Sarojamma,
       W/o Sri. Krishnamurthy,
       D/o Late H. Nanjundaiah,
       Aged about 73 years,
       R/at Gandhi Circle, Varthur
       Bengaluru - 560038
                              2

4.     H.N. Vijayamabha,
       W/o Late Gopala Krishna,
       D/o Late H. Nanjundaiah,
       Aged about 71 years,
       3rd Avenue, 3rd Main,
       Teacher's colony, Koramangala,
       Bengaluru - 560 034

5.     H.N. Manjula,
       W/o Parashuramamurthy,
       D/o Late H. Nanjundaiah,
       Aged about 56 years,
       R/at No.7/21, 1st Floor, 4th Cross,
       5th Main, Behind BSV Temple,
       BSK 3rd Stage, Hosakerehalli,
       Bengaluru - 560 085
                                             ... Petitioners

(By Sri. Jayakumar S. Patil, Senior Advocate
 For Sri. M. Shivaprakash, Advocate)

AND:

1.     Sri. Munisonnappa,
       S/o Subbanna
       Since dead by Lr's

1(a) M.S. Sujatha, W/o Sundar,
     Aged Major, R/at No.418,
     Near Mahesh Pharma,
     Chikkalasandra Main Road,
     Bengaluru - 560 001

1(b) Sri. Vijayendra Kumar L.M.
     S/o Late Munisonnappa,
     Aged Major

1(c)   Sri. Lokesh L.M.,
       S/o Late Munisonnappa,
       Aged Major
                                  3

1(d) Sri. Pradeep Kumar,
     S/o Late Munisonnappa,
     Aged Major

      Respondent 1(b) to 1(d) are
      R/at Lokandahalli village,
      Kasaba Hobli, Hosakote Taluk,
      Bengaluru Rural District - 562 114

                                               ...Respondents

(By Sri. Yeshu Mishra, Advocate for R1(a-d))

      This Writ Petition is filed under Article 227 of the
Constitution of India praying to quash the impugned
order passed in Ex. No.25/2014 on the file of Senior
Civil Judge and JMFC at Devanahalli dated 09.03.2016
at   Annexure      -   H   and   consequently    by    allowing
I.A.No.VIII filed by the petitioner and etc.

      This petition coming on for Orders, this day, the
court made the following :

                            ORDER

Petitioner Nos.1 to 5, who are the applicants/objectors in Execution No.25/2014 have filed the application under Order 21 Rule 97 read with Section 151 of Code of Civil Procedure, objecting the execution of decree and claiming the right over the suit schedule property. In the meantime, they have also filed 4 another application under Order 21 Rule 29 read with Section 151 of Code of Civil Procedure, wherein they have prayed for staying the further proceedings of execution petition. The trial Court considered the application/objections, has dismissed the application filed under Order 21 Rule 29 read with Section 151 of Code of Civil Procedure, on 09.03.2016. Hence, the present writ petition is filed.

2. Sri. Jayakumar S. Patil, learned Senior Counsel appearing for the petitioners fairly submits that if the trial Court proceeds with the application filed by the objectors under Order 21 Rule 97 read with Section 151 of Code of Civil Procedure for deciding their rights/objectors rights, the application under Order 21 Rule 29 read with Section 151 of Code of Civil Procedure, may not be considered. The fact that while considering the Order 21 Rule 97 read with Section 151 of Code of Civil Procedure the trial Court cannot proceed further without deciding the application. The said submission is placed on record.

3. Sri. Yeshu Mishra, learned counsel for respondent Nos.1(a) to 1(d), does not dispute the admitted legal position that once the application is filed under Order 21 Rule 97 read with Section 151 of Code of Civil Procedure, the executing Court has to decide the right of the objectors before proceeding further. Therefore, he submits that application under Order 21 Rule 29 read with Section 151 of Code of Civil Procedure is not maintainable.

4. In view of the fair submission made by the learned counsel for the parties, without adverting to the merits or demerits of the impugned order passed, the trial Court is directed to consider the application filed by the objectors under Order 21 Rule 97 read with Section 151 of Code of Civil Procedure in Execution No.25/2014. Till consideration of the said application, the trial Court shall not take any further steps in the matter.

With the above observations, the petition is disposed of.

Sd/-

JUDGE Mds/-

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