Karnataka High Court
Kumari C Neha D/O C Pandurangshetty vs C Pandurangshetty S/O Narasimhayya ... on 18 February, 2013
Author: N.Kumar
Bench: N.Kumar
1
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 18TH DAY OF FEBRUARY 2013
BEFORE
THE HON'BLE MR. JUSTICE N.KUMAR
W.P. NO. 100622 OF 2013 (GM-CPC)
BETWEEN:
Kumari C. Neha
D/o C. Pandurangshetty
Age 18 years
Occ: Student
Resident of Pinjarwadi
Besthawar Pet
Raichur - 584 101 ...PETITIONER
(By Sri A. P. Murari, Advocate)
AND
1. C. Pandurangshetty
S/o Narasimhayya Shetty
Age: 52 years
Occ: Nil
Resident of Pinjarwadi
Besthawar Pet
Raichur - 584 101
2. Kumari C. Harshita
D/o C. Pandurang Shetty
Age: 14 years, Minor
By her next friend
2
C. Srinivas Shetty
S/o Narasimha Shetty
Age: 50 years
Resident of Pinjarwadi
Besthawar Pet
Raichur - 584 101
3. Smt. Manjula
W/o C. Pandurang Shetty
Age: 43 years
Occ: Household work
Resident of Pinjarwadi
Besthawar Pet
Raichur - 584 101
4. Sri Gopal Singh
S/o Narasingbhan
Age: 64 years
Occ: Business
Resident of House No.12-8-82
Mayoorwadi
Raichur - 584 101
5. Sri Premsingh
S/o Ramsingh
Age: 65 years
Occ: Business
Resident of Kot Talar
Raichur - 584 101
6. Sri Syed Mehaboob Pasha
S/o Syed Abdul Kareem
Age: 51 years
Occ: Business
Resident of H.No.11-12-38/1
Besthawar Pet
Raichur - 584 101 ...RESPONDENTS
3
(By Sri C. Keshav Rao & Sri Veeranagouda,
Advocates)
Writ Petition is filed under Articles 226 And 227
of Constitution of India praying to issue a writ of
certiorari quashing the order dated 11-2-2013 on IA
15 at Annexure-Y, passed by the learned Additional
Senior Civil Judge, Raichur, in Ex. Case No.83/2011.
This writ petition is coming on for orders this
day, this court made the following:
ORDER
This Writ petition is filed challenging the order passed at Annexure Y where an application filed u/O XXI Rule 29 of the Code of Civil Procedure staying of further proceedings in Execution Petition No. 83/2011 is refused.
2. The subject matter of this proceeding is the property consisting of 14' x 13' (inner dimension) entirely dilapidated residential house consisting of room and hall bearing Municipal No. 5-6-32(New), 5- 4 6-31 (Old). The said property belongs to Sri Pandurang Shetty and his daughters Kumari Neha and Arshita. Smt Manjula is the wife of Pandurang Shetty. The 6th respondent Syed Mahaboob Pasha herein entered into agreement to purchase the said property from Pandurang Shetty, the 1st respondent under an agreement dated 17.06.2008 for his behalf and on behalf of his minor children. Subsequent to the agreement on 30.01.2009 Sri Pandurang Shetty sold the said property in favour of respondent Nos. 4 and 5 for valuable consideration and put them in possession of the property. On coming to know the same Syed Mahaboob Pasha 6th respondent filed O.S.No.25/2009 for specific performance of agreement of sale on 07.02.2009 impeding Pandurang Shetty, his daughters, wife and the purchasers as parties to the suit. The suit after contest came to be decreed on 27.10.2011 granting decree for specific performance. Aggrieved by the said 5 judgement and decree Sri Pandurang Shetty and his other family members preferred RFA No. 2207/2010 before this Court. The purchasers also preferred RFA No. 5014/2011 before this Court. Both the appeals came to be dismissed by order dated 13.07.2011. Sri Pandurang Shetty and his family members did not pursue further, but the purchasers filed Special Leave Petition No. 18138/2011 before the Apex Court. It came to be dismissed on 03.02.2012.
3. It is thereafter on 18.05.2012 two daughters who are parties to the proceedings filed a suit in O.S.No.117/2012 represented by next friend junior paternal uncle challenging the aforesaid decree as well as alienation in favour of the purchasers on the ground that the property in question is a Hindu undivided family property. There was no legal necessity for sale of the property and the agreement of sale was not for the benefit of the minors and therefore, they are not bound of such alienation. The 6 defendants in the suit are served. In the meanwhile after dismissal of the Special Leave Petition by Apex Court, Sri Syed Mahaboob Pasha filed Execution Petition No. 83/2011 for executing the decree for specific performance. Therefore, an application under order XXIX Rule 29 of Code of Civil Procedure was filed in O.S.No.117/2012 seeking stay of all proceedings in Execution Petition No. 83/2011 pending disposal of the suit on merits. The said application was opposed. The learned trial judge has dismissed the application and held that the judgement and decree which is sought to be executed is confirmed by Apex Court and when the share of the plaintiffs in O.S.No. 117/2012 is only 1/3rd share each. It is not an exceptional case where the court should exercise its discretion and grant stay of further proceedings in O.S.No.117/2012.
4. Aggrieved by the said order the plaintiffs in O.S.No. 117/2012 are before this Court. 7
5. The learned counsel appearing for the petitioners relying on judgement of this Court in the case of U Sadananda Udupa .vs. Smt T.Kusuma Shedthi in CRP No.253/2011 disposed off on 19th day of September 2011, submits that the trial court ought to have granted stay. Once the condition stipulated under Order XXIX Rule 20 complied with. The valuable right of the minor daughters involved and the father being vagabond has alienated the property without legal necessity and the said alienation is not for the benefit of the minors and therefore, pending disposal of the suit further proceedings have to be stayed, otherwise the property will be sold and they would be put to irreparable hardship.
6. Per contra the learned counsel for the Decree holder 6th respondent herein submits that after the purchase of the property under registered sale deed dated 31.12.2008, purchasers have put up 8 construction over the said property. The Decree holder has sought an order of injunction restraining them from putting up further construction. The trial court by an order of injunction restrained them to put up any construction. Thereafter in MFA No. 30503/2010 before this Court, an undertaking was given by them to the effect that in the event of plaintiff finally succeeding in the proceedings, they will hand over the suit property to the plaintiff without claiming any equity or cost of the construction. The order of the trial court was modified and they were permitted to put up construction. Now the purchasers have lost battle upto the Apex Court, but the present litigation is initiated by them in the name of minor daughters. There is no merit and therefore, he submits no case of interference with the order of the trial court is made out.
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7. The Apex Court had an occasion to consider the scope of Order XXI Rule 29 of Code of Civil Procedure in the case of Krishna Singh, petitioner v. Mathura Ahir and others, Respondents reported in AIR 1982 Supreme Court 686 at para 16 it has been held as under;
"16. We are rather amazed to find that the totally unwarranted plea taken by Sri Krishna Singh seems to have found favour with the Civil Judge who readily accepted the prayer of Sri Krishna Singh of staying the execution of the decree without realising the scope and ambit of O. XXI R.29. Under this provision, jurisdiction has to be exercised with very great care and only under special cases. The Civil Judge also prima facie held that Harshankaranand was not a legal representative of late Mahant when this question was only left pone and had to be decided by the Civil Judge. This shows the casual and perfunctory approach which was made by the Civil Judge. It is rather unfortunate that even the District Judge in revision affirmed the order of the Civil Judge."10
The learned Single Judge of this Court following the aforesaid judgement of the Supreme Court in the case of Smt Sundra bai and others v. Smt Sonubai reported in 2004(5) Kar. L.J. 619 has observed as under;
"The power to stay execution of the decree under Order 21, Rule 29 of the CPC is discretionary. The discretion should be exercised judicially and not mechanically as a matter of course. On mere satisfaction of the pre-condition stipulated in Order 21, Rule 29 of the CPC, the execution proceeding is not to be stayed. The power under this rule has to be exercised only in exceptional cases where the interest of justice requires it. The fundamental consideration should be that the decree-holder is not to be deprived of the fruits of the decree except for good reasons. The decree must be allowed to be executed and unless an extraordinary case is made out, no stay should be granted. As held by the Supreme Court in Krishna Singh v Mathura Ahir and others, the jurisdiction to stay execution of the decree under Order 21, Rule 29 of the CPC has to be exercised with very great care and only in special cases."11
8. Unfortunately these two judgements were not brought to the notice of the judge who passed the orders in CRP No. 253/2011. The said judgement seems counter to the law laid down by the Supreme Court in the aforesaid judgement. In that view of the matter merely because the conditions stipulated in Order XXI Rule 29 is fulfilled it cannot be said that the executing court has no discretion except to stay the execution of further proceedings. The word is used "may" the discretion is left to the court. It is judicial discretion. It has to be exercised keeping in mind the facts of that particular case. Such a discretion is to be exercised keeping in mind the judgement of the Supreme Court.
9. In the instant case two daughters who have filed the present suit are represented by junior paternal uncle i.e., younger brother of their father. The litigation is going on between the parties from 2009. Father contested the matter. Purchasers 12 contested the matter. After loosing the battle they preferred appeals and appeals dismissed. Purchasers went upto Supreme Court. Therefore, it cannot be said interest of the minors had not been properly protected. If such a suit had been filed after decree in O.S.No.25/2009 or challenging the sale deed dated 31.10.2009 immediately thereafter one could have appreciate that conduct and probably taken strict note the interest of the minors. The facts and the dates set out above speaks itself. It is only after loosing battle by the purchasers in the Supreme Court, this present suit is filed through junior paternal uncle on 18.05.2012. It is not as if, the father had no right at all in the property. His 1/3rd share certainly the decree holder is entitled to. Insofar as remaining 2/3rd share the amount is already deposited in the Fixed deposit and said FD to be withdrawn by the successful party. Even if the execution is proceeded with, sale deed is in favour of 13 the decree holder and possession is delivered, that no way would affect the plaintiff in this case. If plaintiff succeeds in the suit as all these things are happened to subsequent to filing of the suit, all these actions would stand nullified. Therefore, in the facts of this case, no such exceptional circumstances made out warranting exercise of discretionary power in favour of plaintiff and stay the execution proceedings. Therefore, the discretion exercised by the executing court cannot be found fault with and it is in accordance with law. It is in accordance with the law laid down by the Supreme Court. In that view of the matter I do not see any merit in this Writ Petition. Accordingly it is dismissed.
10. The trial court shall expedite the suit in O.S.No.117/2012 to put an end to the litigation which is hanging fire in various forms. It is made clear that the observations made above is only for disposing off this Writ Petition. The trial court shall 14 deal with the suit on merits without in any way being influenced by the observations made in this order.
Sd/-
JUDGE *MK