Allowed

Javaraiah v. Sannadevamma Dead by Her Lrs

Karnataka HC26 Aug 2014WP/11038/2014

Case brief

AI extract

What is this about?

Petitioner sought to set aside an order closing execution due to undisclosed post-decree sale of property. Court set aside impugned order and directed conducting of spot survey to identify sold portion.

What did the court decide?

Impugned order set aside; Appointment of Taluk Surveyor as court commissioner for spot inspection; Execution petition revived; Parties to appear before executing court on 15.9.2014.

Javaraiah Vs Sannadevamma Dead by Her Lrs — Execution and Attachment | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 26^TH DAY OF AUGUST 2014

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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WRIT PETITION Nos.11038-11039 OF 2014 (GM-CPC)

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BETWEEN:

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Javaraiah, Son of Late Sannaiah, Aged 83 years, Residing at Benagalu Village, Harnahalli Hobli, Periyapatna Taluk, Mysore District – 571 107.

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…PETITIONER (By Shri. Rohith Gowda, Advocate)

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AND:

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Sannadevamma dead by Her legal representatives

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1a) Sadashiva, Son of Late Sannaiah, Aged 30 years,

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1b) Ramaiah, Son of Late Sannaiah, Aged 28 years,

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1c) Jayamma, Wife of Govinda, Aged 32 years,

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1(a) and (b) residing at Benagalu Village, Harnahalli, Periyapatna,

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Mysore District – 571 107.

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1(c) is residing at Majjanahalli Village, Konanovi Hobli, Periyapatna Taluk, Mysore District – 571 107.

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Uttaraiah dead by His legal representatives

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2a) Jayamma, Wife of Late Uttaraiah, Aged 55 years,

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2b) Ravichandra, Son of Late Uttaraiah, Aged 30 years,

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Both are residing at Benagallu Village, Haranahalli Hobli, Periyapatna, Mysore District – 571 107.

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Lakshmaiah, Son of Boraiaih,

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Aged 48 years,

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Gendaiaih,

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Son of Kalaiah, Aged 71 years,

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Both are residing at Benagallu Village, Haranahalli Hobli, Periyapatna Taluk, Mysore District – 571 107.

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…RESPONDENTS

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(By Shri. P.M. Siddamallappa, Advocate for Respondent Nos. 1(a and b), 2 (a and b), 3 and 4 Respondent no.1(c) served)

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These Writ Petitions filed under Articles 226 and 227 of the Constitution of India praying to set aside the order dated 8.1.2014 so as far the relates to the order passed on I.A.No.10 and 11 in Execution Petition No.39/2004 in O.S.No.80/1998 on the file of Civil Court, (Jr.Dn.) and JMFC., Periyapatna, Mysore, vide Annexure-F, consequently allow the said IAs as prayed for.

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These Writ Petitions coming on for Preliminary Hearing in ‘B’ Group this day, the court made the following:

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O R D E R

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Heard the learned Counsel for the petitioner and the

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respondent.

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The petitioner is the decree-holder and had obtained

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the decree in respect of the suit property. However, it transpires that the petitioner had, after the decree was passed, sold an extent of 3 guntas in favour of one of the judgment debtors. The judgment debtors who had never contested the suit, however, chose to file objections in the execution petition to contend that the petitioner has not disclosed the sale of 3 guntas of land and therefore, there is variance with the terms of the decree, which cannot be executed in its original form. The executing court accepted the plea and closed the execution petition, on the footing that it was incumbent on the petitioner to have the decree modified if it is an admitted position that three guntas, which is the subject matter of the suit, was sold

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subsequent to the decree. It is that order which is sought to be challenged in the present petition.

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The learned Counsel for the petitioner would draw

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attention to Order XXI Rule 2 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the ‘CPC’, for brevity) though in relation to money payable under a decree, has extended the scope of the said rule and the intention to extend to any decree and if there is partial satisfaction of any such decree, it is open for the decree-holder to bring it to the attention of the court and the court shall record the same accordingly and proceed in accordance with law. Therefore, the circumstance that the petitioner had sold a portion of the suit property subsequent to the decree and had not brought it to the attention of the court below, was not fatal to the proceedings and the executing court could have taken appropriate steps and directed the decreeholder to suitably amend the prayer for execution while indicating the exact area of the property which has been sold in favour of the respondent. This exercise was not carried

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out. Therefore, the petitioner being driven to seek modification

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of the decree may not be warranted.

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The learned Counsel for the respondent- judgment

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debtor would also emphasize that unless the area which is sold to one of the judgment debtors is identified by metes and bounds, there is bound to be further fiction and would lead to acrimony and may require yet another suit to be filed and it is therefore pointed out that as contended by the learned counsel for the petitioner himself that unless the executing court was informed of the adjustments made subsequent to the decree, the proceedings were irregular and the executing court could not proceed further. This submission would have to be taken into account. Therefore, in order to ensure that there is finality to the proceedings and in order to ensure that there is no further dispute as regards the holding of the properties, it is necessary for the executing court to appoint a Taluk Surveyor as the court commissioner, in order to carry out spot inspection and to cull out the portion sold by the decree-holder in favour of one of the

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judgment-debtors to the extent of 3 guntas and to identify the boundaries of the property and mark the boundaries thereon. It is for the petitioner to take possession of the remaining area, excluding the area sold in favour of the judgment debtor.

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Incidentally, the learned Counsel for the petitioner

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would submit that the remaining portion is still under the occupation of the respondent herein, which the respondent vehemently denies and would accept that except for three guntas, the rest of the area is available for the petitioner to occupy.

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Therefore, in the light of Order XXI Rule 2 of the

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CPC, it is appropriate that this petition is disposed of while setting aside the order of the executing court with further directions.

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Given the circumstances of the case that the petitioner

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had failed to inform the executing court of the subsequent transactions subsequent to the decree, it only remains for the same to be taken on record. Upon the petitioner furnishing the

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details of such transaction and once that is recorded, it would be for the executing court to appoint a Taluk Surveyor as the Court Commissioner to visit the spot and measure the property in the occupation of the judgment debtor in terms of the sale transaction and to also identify the boundaries and mark the boundaries of the remaining portion of the suit property so that the petitioner could seek delivery of possession of the area of which he is entitled.

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With that observation, the petition is allowed and the impugned order is set aside. The applications in IA X and XI are rendered infructuous and stands dismissed in the light of the above order. The execution petition accordingly stands revived. The parties shall appear before the executing court without any further notice on 15.9.2014.

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Sd/JUDGE

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Javaraiah v. Sannadevamma Dead by Her Lrs

Case brief

What is this about?

What did the court decide?

Javaraiah v. Sannadevamma Dead by Her Lrs

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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