Karnataka High Court
Sri Ramprasad vs Sri M R Nagendra on 7 June, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7th DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
Writ Petition No.23099 of 2017 (GM-CPC)
BETWEEN:
Sri. Ramprasad,
S/o. Rajaramgupta,
Aged about 68 years
(Senior citizen benefit not claimed)
Residing at No.34, Fort 'A' Street,
K.R.Road,
Opposite Vani vilas Hospital,
Bangalore-560 002.
...PETITIONER
(By Smt. Ashwini Patel for Sri. Sridhar G., Advocate)
AND:
Sri. M.R.Nagendra,
S/o. M.R.Rajanna,
Major,
Residing at No.22,
Fort 'A' street,
K.R.Road,
Bangalore-560 002.
...RESPONDENT
This Writ Petition is filed Under Article 227 of the
Constitution of India, praying to set aside the order dated
01.04.2017 in FDP 77/2014 in I.A.NO.1 vide Annexure-A
passed by the LIX Additional City Civil Judge, concurrent
charge of X Additional City Civil Judge rejecting the
application filed by the petitioner for stay of the proceedings
and consequently allow the application for stay and etc.
2
This Writ Petition coming on for Preliminary Hearing,
this day, the Court made the following:
ORDER
Petitioner who is the respondent in F.D.P. 77/2014 is calling in question order dated 01.04.2017, Annexure-A whereunder, application filed by the petitioner for stay of the Final Decree Proceedings has been dismissed.
2. Heard the arguments of Smt. Ashwini Patel, appearing on behalf of Shri. G. Sridhar, for petitioner and perused the records.
3. Respondent herein filed a suit O.S. 5586/2007 for possession of the suit schedule property and for recovery of damages, which came to be decreed on 03.01.2014. Challenging the same, an appeal in R.F.A. 379/2014 came to be filed by the petitioner. This Court, by judgment dated 05.04.2014 has affirmed the judgment and decree passed in O.S. 5586/2007 and an observation came to be made in the said judgment that 3 handing over vacant possession of the suit schedule premises by appellant therein (writ petitioner herein) to the respondent/plaintiff and the decree for damages granted by the Trial Court would be subject to out come of O.S.6916/2007 which suit had been filed by the present petitioner for specific performance of purported agreement of sale dated 10.06.1976 which had also ended in dismissal by judgment and decree dated 11.11.2016 and now pending in R.F.A. 60/2017.
4. In the light of judgment and decree of ejectment having attained finality in R.F.A.379/2014, respondent herein has filed an Execution Petition in Execution case No.929/2016 in order to enjoy the fruits of the said decree and application filed by the judgment debtor for stay of execution proceedings came to be dismissed. An interlocutory application was filed in the pending R.F.A. 60/2017 and the Co-ordinate Bench of this Court by its order dated 08.02.2017 has allowed the said application and stayed the proceedings in Execution case No.929/2016. Be that as it may. The 4 judgment and decree passed in O.S.5586/2007 awarding damages to the respondent/plaintiff by the Trial Court which also was confirmed in R.F.A.379/2014 on 05.04.2014, Annexure-B, resulted in the plaintiff initiating Final Decree Proceedings in F.D.P.77/2014. Said proceedings was sought to be stalled by the defendant by filing an application for stay contending inter-alia that the decree passed in O.S.5586/2007 though confirmed in R.F.A.379/2014, observation had been made therein to the effect that it would be subject to out come of O.S.6916/2007 and judgment and decree passed in O.S.6916/2007 is now pending in R.F.A.60/2017 wherein the execution of judgment and decree passed in O.S.No.5586/2007 has been stayed and as such petitioner is seeking for present Final Decree proceedings also being stayed. Trial Court by impugned order dated 01.04.2017 has dismissed the application as having become infructuous since O.S.6916/2007 has been dismissed. 5
5. The observation made by the Co-ordinate Bench while disposing of R.F.A.379/2014 has been limited to the out come of O.S.6916/2007 and the said suit having been dismissed by a considered judgment and decree on 11.11.2016 and the judgment and decree passed in O.S.5586/2007 having been confirmed by this Court already in R.F.A.379/2016, the respondent/ plaintiff cannot be prevented from seeking Final Decree being drawn. In that view of the matter, the impugned order passed by the Trial Court would not call for interference. Hence, writ petition stands dismissed.
SD/-
JUDGE tsn*