Dismissed

Late Shankar Naik and Ors. v. B Nabisab S/O Madar Saheb and Anr.

Karnataka HC21 Oct 2014WP/205592/2014

Case brief

AI extract

What is this about?

This writ petition sought certiorari to set aside an order dismissing an appeal filed in a civil suit execution matter. The High Court held that the proper remedy was to approach the first appellate court and noted that interim stay was denied there due to filing delay. The writ petition was dismissed as the court could not grant what the law prohibits under appellate rules.

What did the court decide?

The writ petition filed under Articles 226 and 227 of the Constitution was dismissed as the petitioners were not entitled to interim stay of execution.

Late Shankar Naik and Ors. Vs B Nabisab S/O… — Civil Procedure and Limitation | Karnataka HC (2014)

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W.P.NO.205592/2014

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IN THE HIGH COURT OF KARNATAKA GULBARGA BENCH

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DATED THIS THE 21^ST DAY OF OCTOBER, 2014

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BEFORE:

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THE HON’BLE MR. JUSTICE A.S.PACHHAPURE

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WRTI PETITION No.205592 OF 2014 (GM-CPC)

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BETWEEN

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LATE SHANKAR NAIK DEAD BY HIS LR’S

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A) SMT.SHANTHALA BAI W/O LATE SHANKAR NAIK AGE: 67 YEARS, OCC: HOUSEHOLD

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B) RAJU S/O LATE SHANKAR NAIK AGE: 46 YEARS, OCC: EMPLOYEE

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C) MAHESH S/O LATE SHANKAR NAIK AGE: 44 YEARS, OCC: EMPLOYEE

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D) NAGARAJ S/O LATE SHANKAR NAIK AGE: 30 YEARS, OCC: PRIVATE SERVICE

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E) NAGESH S/O LATE SHANKAR NAIK AGE: 28 YEARS, OCC: PRIVATE SERVICE

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F) SMT.SAVITRI D/O LATE SHANKAR NAIK AGE: 38 YEARS OCC: HOUSEHOLD

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G) SMT.VIJAYALAXMI D/O LATE SHANKAR NAIK AGE: 32 YEARS, OCC: HOUSEHOLD

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W.P.NO.205592/2014

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H) SMT.INDIRA D/O LATE SHANKAR NAIK

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AGE: 30 YEARS, OCC: HOUSEHOLD

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I) SMT.NAGARATHNA D/O LATE SHANKAR NAIK AGE: 28 YEARS OCC: HOUSEHOLD

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ALL ARE R/O H.NO.1-1-14/1-A I.B.CHIKALPARAVI ROAD MANVI TOWN, TQ : MANVI DIST : RAICHUR

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... PETITIONERS

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(BY SRI. ARUN KUMAR A, ADV.)

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AND

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B NABISAB S/O MADAR SAHEB AGE: 66 YEARS, OCC: EMPLOYEE IN KEB R/O : H.NO.1-14/1, BEHIND IB CHICKALPARVI ROAD,MANVI TQ : MANVI,DIST : RAICHUR-584123

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THE CHIEF OFFICER TOWN MUNICIPAL COUNCIL MANVI,DIST : RAICHUR-584123

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... RESPONDENTS

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(BY SRI. LIYAQAT FAREED USTAD, ADV. FOR R1)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO A WRIT OF CERTIORARI TO QUASH / SET ASIDE THE ORDER DATED 30.04.2014, PASSED BY CIVIL JUDGE (JR.DN.) & JMFC MANVI IN E.P. NO. 10/2007 BY VIDE ANNEXURE - 'D' AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

W.P.NO.205592/2014

O R D E R

This petition is filed seeking writ of

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certiorari with request to set aside the order dated 30.04.2014, passed by the learned Civil Judge in E.P.No.10/2007, to demolish the construction.

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The facts reveal that the suit came to be instituted in O.S.No.56/1998 against the petitioners and others. There was a decree of injunction dated 31.01.2007. The petitioners and others did not prefer any appeal for a long period and therefore, the execution petition came to be filed by the 1^st respondent and he obtained the order, which has been challenged in this writ petition. The petitioners have approached the 1^st appellate Court in Cvl.Misc.No.65/2014. There was a delay of 7 years, 6 months and 9 days in filing the said appeal. For this reason, the 1^st appellate Court has not granted any interim stay of the execution of the decree and has ordered to issue notice on condonation delay

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W.P.NO.205592/2014

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application to the 1^st respondent. The petitioners were not able to obtain the interim stay.

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The proper remedy for the petitioners is

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to file an appeal before the 1^st appellate Court. So far as the execution of the decree is concerned, when there is a delay in filing the appeal, as per the provisions of Order 41 Rule 3(A) of CPC, till the delay is condoned, interim stay cannot be granted by the 1^st appellate Court. This petition has been filed with purpose to obtain stay of the execution petition. The petitioners were not able to obtain an interim order of stay and such relief cannot be granted in the writ petition, and to grant such relief is to do something, which the law prohibits. For this reason the petitioners are not entitled to the relief in this writ petition.

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Any how, the Court in which the appeal is

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pending, has to expedite the disposal of the interim

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application by accepting the application filed by the petitioners to advance the case and to consider

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W.P.NO.205592/2014

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the relief at earlier point of time, to do the justice to the parties.

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The petition is accordingly disposed of.

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Sd/JUDGE. Srt

Late Shankar Naik and Ors. v. B Nabisab S/O Madar Saheb and Anr.

Case brief

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Late Shankar Naik and Ors. v. B Nabisab S/O Madar Saheb and Anr.

Case brief

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